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[ { "docid": "22273496", "title": "", "text": "2. The second question involved is as to the right of the contractor to recover because the Government’s advertisement for proposals, instead of stating the number of elevated stations to be served at four, which was, in fact, the number, gave the number of stations at two, thus doubling the number of trips necessary. It is .true that the advertisement required the bidders to inform themselves as to the facts, and stated that additional compensation would not be allowed for mistakes; but,, in the present instance, the Government in its advertisement had positively stated the number of stations at two. The contractor had a right to presume that the Government knew how many stations were to be served; it was a fact peculiarly within the knowledge of the Government agents and upon which, in the advertisement, it spoke with certainty. We do not think, when the statement was thus unequivocal, and the document was prepared for the guidance of bidders for Government service, that the general statement that the contractor must in-. vestigate for himself, and of non-responsibility for mistakes, would require an independent investigation of a fact which the Government had left in no doubt. We think the Court of Claims correctly allowed this item. 3. As to the compensation for the so-called “foot service,” for carrying the mails up and down.the steps at the elevated railroad stations, the delivery 'of the mail at the foot of the steps would not have been sufficient, and the contractor agreed to deliver the mail into the post offices, mail stations and cars. 'The statement of facts shows that the preceding contractor had delivered the mail on the platform of the stations at the door of the cars. We think the contract was not exclusively for wagon service, but, reasonably construed, required the delivery of the mail into the elevated stations in such wise as to be placed in the cars, and consequently required it to be carried upstairs without \"kxtra allowance of pay. We find no error in disallowing this claim for extra compensation. The judgment of the Court of Claims" } ]

[ { "docid": "23031255", "title": "", "text": "of the contract, prescribe specific remedies for certain breaches of the contract by the government. In such instances, the procedure specified in the Disputes clause must be followed while work is continued, lest the contractor be denied a remedy in this court for failure to pursue his administrative remedies. Therefore, where complete relief is available to the contractor under the provisions of the contract on a claim arising under the Disputes clause, the action is not one for such a breach of the contract that entitles either party to a de novo trial on the factual questions decided. We think the Supreme Court’s decision in Bianehi compels the application of these rules even when the major issue to be decided is a question of law, as well as when the decision rests upon mixed questions of law and fact. As previously stated, the claim involves questions of law relating to the interpretation of the contract. Bruno New York Industries Corp. v. United States, Ct.Cl., 342 F.2d 75, March 12, 1965. The board’s decisions on such questions are not final, but they are not before us at this stage of the proceedings and we intimate no decision on them. Defendant concedes and plaintiff agrees that the plaintiff’s right to a de novo trial on the delay claim is governed by our decision in Utah Construction and Mining Co. v. United States, supra. Faced with the prospect of having their suits in court dismissed for failure tor exhaust their administrative remedies, contractors often feel compelled to present all claims relating to the contract to the contracting officer, and on appeal to the appeals board. United States v. Blair, 321 U.S. 730, 64 S.Ct. 820, 88 L.Ed. 1039 (1944); United States v. Joseph A. Holpuch, 328 U.S. 234, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946); Henry E. Wile Co. v. United States, 144 Ct.Cl. 394, 169 F.Supp. 249 (1959). In some instances, the boards recognize that they have no jurisdiction and take no action beyond noting that fact. In this case, the IBCA stated that it had no jurisdiction of plaintiff’s claim for" }, { "docid": "22374984", "title": "", "text": "why the parties to the contract should provide for final determination of such disputes by a method wholly separate from the fact-limited provisions of Art. 15. To hold that the parties did not so “intend” would be a distortion of the interpretative process. The language of Par. 2-16 is clear. No ambiguities can be injected into it by supportable reasoning. It states in language as plain as draftsmen could use that findings of the Secretary of War in disputes of the type here involved shall be “final and binding.” In reconsidering the questions decided by the designated agent of the parties, the Court of Claims was in error. Its judgment cannot stand. Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. “If the contractor considers any work demanded of him to be outside the requirements of the contract or if he considers any action or ruling of the contracting officer or of the inspectors to be unfair, the contractor shall without undue delay, upon such demand, action, or ruling, submit his protest thereto in writing to the contracting officer, stating clearly and in detail the basis of his objections. The contracting officer shall thereupon promptly investigate the complaint and furnish the contractor his decision, in writing, thereon. If the contractor is not satisfied with the decision of the contracting officer, he may, within thirty days, appeal in writing to the Secretary of War, whose decision or that of his duly authorized representative shall be final and binding upon the parties to the contract. . . .” Paragraph 2-16 of the specifications. “Disputes. — Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.” Article 15 of the contract. These and other representations in" }, { "docid": "14443494", "title": "", "text": "work [the government] made a representation upon which the claimants had a right to rely without an investigation to prove its falsity.” Id. Unlike Hollerbach, this is not a breach of contract case. Indeed, the court has already determined that under the Contract Disputes Act it lacks jurisdiction to hear a contract claim by Weeks Marine against the United States. Weeks Marine argues, however, that “Michigan Wisconsin adopts the Hollerbach principles” and that under Michigan Wisconsin it was “obliged by the law to accept the [government's warranty regarding the number of pipelines as true.” Weeks Marine points to the Supreme Court’s language in Hollerbach that the government’s representations “must be taken as true and binding upon the government,” 34 S.Ct. at 556, to argue that it was obliged by law to accept the government’s representations in the contract as true. The court does not interpret this language to mean that Weeks Marine was required to accept the contract specifications as true even when it had ready access to contrary and more recent information from the government. Cf. D.F.K. Enterprises, Inc. v. United States, 45 Fed. Cl. 280, 285 (Fed.Cl.1999) (“Without some valid basis for a contrary conclusion (e.g., an absence of detrimental reliance by a government contractor, or a failure to investigate source's which would have revealed the truth), the' government ‘is liable for damage attributable to misstatements of fact (in a contract or specifications) which are representations made to the contractor.’ ” (quoting Summit Timber Co. v. U.S., 677 F.2d 852, 857 (Ct.Cl.1982))). The facts of Michigan Wisconsin are discussed in detail in Part II.Á above. Important for purposes of applying Michigan Wisconsin to this case is the fact that in Michigan Wisconsin neither NOAA nor the Coast Guard had issued charts or announcements that identified the ruptured pipeline prior to the allision. Here, NOAA charts and LNMs identifying Contango’s pipeline were readily available to Weeks Marine employees before the allision. The court has already concluded that given the significant damage that could result from striking a pipeline, the availability of current pipeline data, and the ease of accessing" }, { "docid": "14443492", "title": "", "text": "seamanship.” Peoples Natural Gas Co. v. Ashland Oil, Inc., 604 F.Supp. 1517, 1523 (W.D.Pa.1985) (citing Gilmore & Black, The Law of Admiralty § 7-3, at 488 (2d ed.1975)). The court has heard the evidence and concludes that the general maritime law does not impose an affirmative duty on the G.D. MORGAN to carry updated charts and LNMs or to have a crew of licensed mariners because the tugs that towed the G.D. MORGAN during the dredging project had updated charts and LNMS and were manned by licensed mariners. D. Weeks Marine’s Indemnity Argument Weeks Marine contends that under Michigan Wisconsin and Hollerbach v. United States, 233 U.S. 165, 49 Ct.Cl. 686, 34 S.Ct. 553, 58 L.Ed. 898 (1914), it was obligated to accept the government’s representations in the dredging contract as true and therefore had no duty to Con-tango to consult updated charts prior to the date of the allision. Weeks Marine argues that it is therefore entitled to indemnity from the United States for any liability imposed on it because of its sole reliance on the contract. The court finds both Michigan Wisconsin and Hollerbach to be distinguishable from the facts of this case. Hollerbach involved a breach of contract claim by a contractor against the United States. 34 S.Ct. at 554-55. The plaintiff contractor brought an action against the United States to recover costs that it incurred removing material from behind a dam. Id. at 554. The contract stated that the dam was backed with “broken stone, sawdust, and sediment.” Id. In fact, the dam “was backed by cribwork ... consisting of sound logs filled with stones,” which was more expensive to remove. Id. at 554-55. The Court held that the government’s representation of the character of the material backing the dam was a “positive statement of the specifications” and “must be taken as true and binding upon the government, and that upon it, rather than upon the claimants, must fall the loss resulting from such mistaken representations.” Id. at 556. The court further noted that “[i]n its positive assertion of the nature of this much of the" }, { "docid": "811688", "title": "", "text": "of a contract and the specifications is a decision on a question of law rather than the determination of a fact and does not preclude the consideration, decision, and determination by the court of the question in controversy, including the facts.” Callahan Construction Co. v. United States, 1940, 91 Ct.Cl. 538, 616. In Rust Engineering Co. v. United States, 1938, 86 Ct.Cl. 461, 473-474, cited in the Callahan case as authority, a contractor did not appeal from an adverse decision of a board of officers of the 'Treasury Department as provided in the disputes clause of his contract. The government argued he had not exhausted his .administrative remedy and the Court of ■Claims was without jurisdiction. The ■Court of Claims held it did have jurisdiction, pointing out that the disputes ■clause was final only as to questions of fact, and since the board made no findings of fact there was nothing from which an appeal was required to be taken. The Court of Claims then interpreted the specifications of the contract based on its own findings of fact. In the Callahan case the Court of Claims also made its own determination of the facts but this was where “practically all the decisions and recommendations of the contracting officer and the head of the department in regard to practically all the claims in suit were based upon constructions which they placed upon certain articles of the contract and the specifications, rather than upon their findings upon disputed questions of fact.” 91 Ct.Cl. at page 610. As to factual questions which the contracting officer did resolve but which the Court of Claims did not follow, the court found the contracting officer’s determinations were arbitrary and so grossly erroneous as to imply bad faith. 91 Ct.Cl. at pages 564, 593 and 651. While it is true that in making its decisions as to questions of law the Court of Claims will consider the underlying facts and make a determination as to them, its cases, cited by the government, do not go so far as the government would have us to go here and," }, { "docid": "13026865", "title": "", "text": "upon the claimants, must fall the loss resulting from such mistaken representations. We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the government as a basis of the contract left in no doubt * * * In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity. See United States v. Utah, N. & C. Stage Co., 199 U.S. 414, 424, 50 L.Ed. 252, 255, 26 Sup.Ct.Rep. 69.” The trial court took evidence upon the value of the disputed work and determined that the fair and reasonable cost of the work involved was $8,659.77 but held that the issue was one of fact not considered in the administrative process and consequently beyond the jurisdiction of the court. Since we conclude that the disputed work was beyond the scope of the contract it follows that the court was in error and that jurisdiction existed to entertain the issue. Cf. Allied Contractors v. United States, 124 F.Supp. 366, 129 Ct.Cl. 400; International Potato Corp. v. United States, Ct.Cl., 161 F.Supp. 602. Reversed and remanded with directions to vacate the judgment of dismissal and enter judgment for plaintiff in the sum of $8,659.77. . 41 U.S.C.A. § 321: “No provision of any contract entered into by the United States relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the same is fradulent (sic) or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is" }, { "docid": "7167021", "title": "", "text": "with the United States because he accepts without inquiry the engineering skill and ability of Government engineers ? Who was in the best position to know of local conditions—the defendants or the plaintiff? There can be but one answer. Who was at fault in the premises? The defendants knew, as before observed, and while perhaps not intentionally withholding the knowledge, the effect is the same. The dam in the 7-foot sewer, like the sewer itself, was on Government property, with which the plaintiff had but temporary concern, and that was to attach the 6-foot sewer to the 7-foot one. It was placed there for the benefit of Government interests, viz, to preserve healthful conditions near Wallabout Basin. There was no way open for the plaintiff to detect its presence unless called upon to do absurd thing's. It was carelessly omitted from any record of the sewerage system, and its entire absence from the records of the general sewerage system of the city of Brooklyn sustains an inference that it could not have been the work of said city. As Mr. Justice Day said in the Hollerbach case, sufra, p. 172: “ We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the Government as a basis of the contract left in no doubt. If tbe Government wished to leave the matter open to independent investigation of the claimants it might easily have omitted the specification as to the character of the filling back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity.” No loss followed from the mere location of the sewer; it was properly constructed and supported; the record finds the loss ascribable wholly to inherent defects in engineering, inefficient plans and design, a fact fully corroborated by the subsequent conduct of the defendants in caring for this same sewer. Sundstrom v. State" }, { "docid": "16779617", "title": "", "text": "the material to be dredged, and to that extent the statement must be taken as true and binding upon the Government. In its positive assertion of the character of the material the Government made a representation upon which the plaintiff had a right to rely without an investigation to prove its falsity. Hollerbach v. United States, supra. It is, however, insisted that the falsity of the statements made in the specifications as to the character of the material was not known to the contracting officer with whom the plaintiff contracted to do the work. But as was asserted in Christie v. United States, 237 U. S., 234-242: “ It makes no difference to the legal aspect of the case that the omissions from the records of the results of the borings did not have a sinister purpose. There were representations made which were relied upon by claimants, and properly relied upon by them, as they were positive.” In this case not only omissions from the records of the results of the borings were made but false statements of the character of the material were placed upon the maps, which were exhibited to bidd.ers for their information, and to which their attention was directed by the defendants. This case is to be distinguished from the case of Simpson v. United States, 172 U. S., 372, in that the alleged warranty in that case related to the surface indications of an available site open to the inspection and view of the plaintiff; but in this case the alleged warranty is as to the character of the material which was to be dredged, the composition of which was hidden from view. One related to the surface or site; the other refers to composition hidden from the view. A warranty will not extend to guard against defects plain and obvious to the senses of the contracting party; but the condition of the material in this case afforded no opportunity to the plaintiff to protect itself by mere observation, so that the warranty at the time it was made became operative upon the right of" }, { "docid": "13026864", "title": "", "text": "lines and sprinkler systems and other obstructions was adequately shown by the testimony and it was in a better position to determine the extent of the job in this aspect than were the bidding contractors. In a case remarkably similar, Hollerbach et al. v. United States, 233 U.S. 165, 171, 34 S.Ct. 553, 555, 58 L.Ed. 898, the Supreme Court has stated: “A government contract should be interpreted as are contracts between individuals, with a view to ascertaining the intention of the parties and to give it effect accordingly, if that can be done consistently with the terms of the instrument. In paragraph 33 the specifications spoke with certainty as to a part of the conditions to be encountered by the claimants * * * the specifications assured them of the character of the material, — a matter concerning which the government might be presumed to speak with knowledge and authority. We think this positive statement of the specifications must be taken as true and binding upon the government, and that upon it, rather than upon the claimants, must fall the loss resulting from such mistaken representations. We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the government as a basis of the contract left in no doubt * * * In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity. See United States v. Utah, N. & C. Stage Co., 199 U.S. 414, 424, 50 L.Ed. 252, 255, 26 Sup.Ct.Rep. 69.” The trial court took evidence upon the value of the disputed work and determined that the fair and reasonable cost of the work involved was $8,659.77 but held that the issue was one of fact not considered in the administrative process and consequently beyond the jurisdiction of the court. Since we conclude that the disputed work was beyond the scope of the contract it follows" }, { "docid": "23634712", "title": "", "text": "quantity of acceptable material available at sources designated in the special provisions or otherwise designated. * * * ” ; and (ii) that “If so directed by the engineer during construction, the contractor shall be required to use borrow deposits other than those shown in their general location on the plans.” It is also true that article 2.3 of the specifications provided that the submission of a bid should be considered prima facie evidence that the bidder had examined the site and the contract documents and was “satisfied as to the conditions to be encountered in performing the work as scheduled, or as at any time altered without resulting in increases or decreases of more than the percentage limits hereinafter stipulated. * * * ” But this court has frequently held in comparable circumstances that broad provisions of this kind — stating that the government does not guarantee the statements of fact contained in the specifications or drawings or requiring the bidder to investigate the site and satisfy himself of conditions, etc. — cannot be given their full literal reach and do not relieve the government from liability. United Contractors v. United States, 368 F.2d 585, 598, 177 Ct.Cl. 151, 165-166 (1966); Flippin Materials Co. v. United States, 312 F.2d 408, 413, 160 Ct.Cl. 357, 365 (1963), and cases cited at note 8; Fehlhaber Corp. v. United States, 151 F. Supp. 817, 825,138 Ct.Cl. 571, 584 (1957), cert, denied, 355 U.S. 877, 78 S.Ct. 141, 2 L.Ed.2d 108. See also e. g., Hirsch v. United States, 94 Ct.Cl. 602, 637 (1941); Ruff v. United States, 96 Ct.Cl. 148, 160, 162-164 (1942); Loftis v. United States, 76 F.Supp. 816, 825-826, 110 Ct.Cl. 551, 627-629 (1948); Peter Kiewit Sons’ Co. v. United States, 74 F.Supp. 165, 167-168, 109 Ct.Cl. 517, 520-523 (1947); H. L. Yoh Co. v. United States, 288 F.2d 493, 153 Ct.Cl. 104 (1961). The short of the matter is that the information contained in the drawings constituted positive representations upon which plaintiff was justified in relying. It follows that the action taken by the commission in (i) designating substitute" }, { "docid": "16779616", "title": "", "text": "document prepared for the guidance of bidders. It seems to the court that the bidder had a right to rely on information so given, and was not obliged to make an independent investigation of a fact which the Government had left in no doubt. United States v. Stage Co., 199 U. S., 414, 424. In the case of Hollerbach v. United States, 233 U. S., 165, 172, a case similar to this, where the question was as to the right of the plaintiffs to rely on state ments made by the defendants in specifications, setting out the character of the material to be dredged, the court said: “ True the claimants might have penetrated the seven feet of soft slushy sediment by means which would have discovered the log cribwork filled with stones which was concealed below, but the specifications assured them of the character of the material, a matter concerning which the Government might be presumed to speak with knowledge and authority.” In this case the specifications spoke positively as to the character of the material to be dredged, and to that extent the statement must be taken as true and binding upon the Government. In its positive assertion of the character of the material the Government made a representation upon which the plaintiff had a right to rely without an investigation to prove its falsity. Hollerbach v. United States, supra. It is, however, insisted that the falsity of the statements made in the specifications as to the character of the material was not known to the contracting officer with whom the plaintiff contracted to do the work. But as was asserted in Christie v. United States, 237 U. S., 234-242: “ It makes no difference to the legal aspect of the case that the omissions from the records of the results of the borings did not have a sinister purpose. There were representations made which were relied upon by claimants, and properly relied upon by them, as they were positive.” In this case not only omissions from the records of the results of the borings were made but" }, { "docid": "7167022", "title": "", "text": "of said city. As Mr. Justice Day said in the Hollerbach case, sufra, p. 172: “ We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the Government as a basis of the contract left in no doubt. If tbe Government wished to leave the matter open to independent investigation of the claimants it might easily have omitted the specification as to the character of the filling back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity.” No loss followed from the mere location of the sewer; it was properly constructed and supported; the record finds the loss ascribable wholly to inherent defects in engineering, inefficient plans and design, a fact fully corroborated by the subsequent conduct of the defendants in caring for this same sewer. Sundstrom v. State of New York, 213 N. Y., 68. The defendants by their plans and specifications warranted their efficiency and the contractor had a right to rely upon them as correct representations of good and sufficient engineering skill and ability without an independent investigation of previous local conditions which might have warned him otherwise. He can not be held to have assumed the risk in any event for an obstruction in a sewer entirely outside the lines of his contract work, and which he had no means of discovering in the ordinary discharge of his contractual duty. The defendants were bound to furnish him workable plans to accomplish the desired end. They were likewise bound to furnish plans that allowed him to prosecute his work without loss, damage, or delay due to their mistake; and if by reason of their error the contractor could not proceed without the danger of not only loss of all his profits, but destruction of his and Government property as well, he may, upon the defendants’ absolute refusal to correct the same" }, { "docid": "14443493", "title": "", "text": "on the contract. The court finds both Michigan Wisconsin and Hollerbach to be distinguishable from the facts of this case. Hollerbach involved a breach of contract claim by a contractor against the United States. 34 S.Ct. at 554-55. The plaintiff contractor brought an action against the United States to recover costs that it incurred removing material from behind a dam. Id. at 554. The contract stated that the dam was backed with “broken stone, sawdust, and sediment.” Id. In fact, the dam “was backed by cribwork ... consisting of sound logs filled with stones,” which was more expensive to remove. Id. at 554-55. The Court held that the government’s representation of the character of the material backing the dam was a “positive statement of the specifications” and “must be taken as true and binding upon the government, and that upon it, rather than upon the claimants, must fall the loss resulting from such mistaken representations.” Id. at 556. The court further noted that “[i]n its positive assertion of the nature of this much of the work [the government] made a representation upon which the claimants had a right to rely without an investigation to prove its falsity.” Id. Unlike Hollerbach, this is not a breach of contract case. Indeed, the court has already determined that under the Contract Disputes Act it lacks jurisdiction to hear a contract claim by Weeks Marine against the United States. Weeks Marine argues, however, that “Michigan Wisconsin adopts the Hollerbach principles” and that under Michigan Wisconsin it was “obliged by the law to accept the [government's warranty regarding the number of pipelines as true.” Weeks Marine points to the Supreme Court’s language in Hollerbach that the government’s representations “must be taken as true and binding upon the government,” 34 S.Ct. at 556, to argue that it was obliged by law to accept the government’s representations in the contract as true. The court does not interpret this language to mean that Weeks Marine was required to accept the contract specifications as true even when it had ready access to contrary and more recent information from the" }, { "docid": "21232848", "title": "", "text": "was led to believe that no claim would be asserted for the savings. Under these circumstances we hold that the failure of the contracting officer to make an equitable adjustment, within a reasonable time after it was apparent that savings had been realized and in time for the contractor to appeal any dispute on the matter to the head of the department, constituted a waiver by the Government of any entitlement to the claimed savings. As this court stated in Branch Banking and Trust Company v. United States, 98 F.Supp. 757, 120 Ct.Cl. 72, 88 (1951), cert. denied 342 U.S. 893, 72 S.Ct. 200, 96 L.Ed. 669, when the Government is acting in its proprietary capacity, it may be estopped by an act of waiver in the same manner as a private contractor. Such a result is justified by the plain language of the contract and accords with the principles of fair dealing. Although the defendant contends otherwise, we have found no court decision which, after considering a similar factual situation, stands for a contrary proposition. In Appeal of Randall Construction Co., WDBCA 675, 2 CCF 1117 (1944), the Board of Contract Appeals held that the contracting officer’s delay of more than one year after the work was completed before issuing a modification reducing the contract price, was unreasonable, particularly since it appeared that the contractor had settled with his subcontractors and the delay had induced the belief that no price adjustment was contemplated. In Topkis Brothers Company v. United States, 297 F.2d 536, 155 Ct.Cl. 648 (1961), upon which defendant relies, defendant was permitted at the trial, without objection by plaintiff, to amend its answer by asserting a claim for savings realized through a deviation in the contract specifications, although the contracting officer had not issued a modification to the contract. Upon the basis of plaintiff’s failure to object and without discussing the legal question presented here, the court allowed the counterclaim. Here the plaintiff has from the beginning objected strenuously to the counterclaim on the ground that it was asserted too late. Salem Products Corp. v. United States," }, { "docid": "22734851", "title": "", "text": "the dam “was not backed with broken stone, sawdust and sediment as stated in paragraph 33 of the specifications, ” and below seven feet from the top to the bottom there was a backing of cribbing of an average height of 4.3 feet of sound logs filled with stone. Obviously, this made it much more expensive to do the work than if the representation inserted by the Government in the specifications of its own preparation had been true and only the character of material had been found which the specification unequivocally asserted was there. A Government contract should be interpreted as are contracts between individuals, with a view to ascertaining the intention of the parties and to give it effect accordingly, if that can be done consistently with the terms of the instrument. In paragraph 33 the specifications spoke with certainty as to a part of the conditions to be encountered by the claimants. True the claimants might have penetrated the seven feet of soft slushy sediment by means which would have discovered the log crib work filled with stones which was concealed below, but the specifications assured them of the character of the material, a matter concerning which the Government might be presumed to speak with knowledge and authority. We think this positive statement of the specifications must be taken as true and binding upon the Government, and that upon it rather than upon the claimants must fall the loss resulting from such mistaken representations. We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the Government as a basis of the contract left in no doubt. If the Government wished to leave the matter open to the independent investigation of the claimant's it might easily have omitted the specification as to the character of the filling- back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation" }, { "docid": "13026866", "title": "", "text": "that the court was in error and that jurisdiction existed to entertain the issue. Cf. Allied Contractors v. United States, 124 F.Supp. 366, 129 Ct.Cl. 400; International Potato Corp. v. United States, Ct.Cl., 161 F.Supp. 602. Reversed and remanded with directions to vacate the judgment of dismissal and enter judgment for plaintiff in the sum of $8,659.77. . 41 U.S.C.A. § 321: “No provision of any contract entered into by the United States relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the same is fradulent (sic) or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” . Article 16. — Disputes. “ * * * any dispute concerning a question of fact arising under this contract * * * shall be decided by the Contracting Officer * * * the Contractor may appeal * * * and the decision of the Secretary or his duly authorized representative for the hearing of such appeals shall be final and conclusive; * * *" }, { "docid": "12723241", "title": "", "text": "contention to this effect. . Plaintiff’s employee who looked at the film reported that the microfilm, “as best he could tell from the use of the viewer”, “appeared to be fair.” . In Hollerbaeh, this court construed one contract paragraph (# 33) as a “warranty”, but held that other paragraphs “required the claimants to inform themselves of the condition” of the warranted property at the jobsite, and that when all the paragraphs were read together the “representations of the last-named paragraph [# 33] could not be regarded as a warranty upon which the claimants had the right to rely * * 233 U.S. at 169, 34 S.Ct. at 554. The Supreme Court reversed, holding that the general contractual language requiring the bidder to investigate the jobsite or satisfy himself of conditions did not relieve the Government from liability for positive, mistaken representations. Id. at 172, 34 S.Ct. 553. See Flippin Materials Co. v. United States, 312 F.2d 408, 413, 160 Ct.Cl. 357, 365 (1963), and cases cited therein at n. 8. Compare DuBois Constr. Corp. v. United States, 98 F.Supp. 590, 594, 120 Ct.Cl. 139, 168-169 (1951); Ross Eng’r Co. v. United States, 103 Ct.Cl. 185, 196-198 (1945), cert. denied 326 U.S. 735, 66 S.Ct. 45, 90 L.Ed. 438. . As shown in Part III, infra, it is plain that adequate prints could not be made. - The contract was amended on May 19, 1959 (some two years after it was awarded) . This was done because it was found impracticable to dismantle all parts of the Government-furnished prototype radio transmitter in order to ascertain whether parts were interchangeable. The amendment eliminated the interchangeability requirement as to those parts and components of the prototype transmitter which were not readily accessible and could not be easily removed. The microfilm prints could have been used in ascertaining the interchangeability of these parts. Apparently, one of the factors in the defendant’s decision to agree to this amendment was its realization that the plaintiff could not meet the requirements as to these parts without prints. As to other parts, the lack of prints remained" }, { "docid": "22734852", "title": "", "text": "crib work filled with stones which was concealed below, but the specifications assured them of the character of the material, a matter concerning which the Government might be presumed to speak with knowledge and authority. We think this positive statement of the specifications must be taken as true and binding upon the Government, and that upon it rather than upon the claimants must fall the loss resulting from such mistaken representations. We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the Government as a basis of the contract left in no doubt. If the Government wished to leave the matter open to the independent investigation of the claimant's it might easily have omitted the specification as to the character of the filling- back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity. See United States v. Stage Co., 199 U. S. 414, 424. It follows that the judgment of .the Court of Claims must be reversed and the case remanded to that court with directions to enter judgment for the claimants for the damages incurred because of the different character of material found behind the dam than that described in the specifications. Reversed." }, { "docid": "21916326", "title": "", "text": "mean the second. We concluded that plaintiffs intended to bring an “independent action” under Rule 152(b) “to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.” Being, however, doubtful whether this was adequate authority to enable us to relieve a party from a judgment of a United States District Court, we entered an order directing the parties to furnish supplemental briefs on the question, and this they have diligently done. We conclude we lack jurisdiction to entertain such an “independent action.” Our rules must be read in light of the principle that: * * * the court cannot, through its acknowledged rule-making power, expand its jurisdiction beyond the limits prescribed by Congress. * * * Rolls Royce Ltd. v. United States, 364 F.2d 415, 419, 176 Ct.Cl. 694, 701 (1966). In that case we cited Graf v. United States, 24 F.Supp. 54, 87 Ct.Cl. 495 (1938). This is a rule of construction that governs the application of all our rules. The quoted language of Rule 152(b) has its proper scope for application in cases where plaintiff seeks in this court relief against an earlier decision of this court. Thus in Haggar Co. v. United States (Nos. 48790 and 48791) 121 Ct.Cl. 891 (1952, erroneously 1942 in report), we adjudicated the claims there involved for defendant, but in Haggar Co. v. United States, 128 F. Supp. 404, 130 Ct.Cl. 770 (1955), we held that a new suit on the same contracts was not barred by collateral estoppel because we would treat it as an “independent action” under our then Rule 54(b), now 152(b). An order reported, 136 Ct.Cl. 805 (1956), reflects that the new suit was settled for $7,000. Cf., Kamen Soap Products Co. v. United States, 140 Ct.Cl. 566 (1957), cert. denied, 357 U.S. 939, 78 S.Ct. 1385, 2 L. Ed.2d 1551, reh. denied, 358 U.S. 858, 79 S.Ct. 16, 3 L.Ed.2d 93 (1958), in which we refused in an “independent action” to reopen Kamen Soap Products Co. v. United States, 124 F.Supp. 608, 129 Ct. Cl. 619 (1954)," }, { "docid": "11922256", "title": "", "text": "such waiver on defendant’s part does not appear in the record). There is nothing to indicate that these were not legitimate decisions within defendant’s prerogative to make. As such, they could only serve to benefit plaintiff. The fact that, as a result of such decisions, it turned out that the costs as set forth on plaintiff’s original cost statement remained unchanged is immaterial. Until such determinations, this was uncertain and unknown. As the court specifically noted in Holton, Seelye & Co., supra, a contract cannot be regarded as complete prior to final acceptance because “until final acceptance the defendant might still have required other work of plaintiff.” (65 F.Supp. p. 907, 106 Ct.Cl. p. 501.) On this “completion of the contract” issue, the Appeals Board sustained plaintiff’s contention that the contract was completed upon final delivery on March 4, and plaintiff contends that this is a factual finding which is binding on this court. True, the parties accept the Board’s factual findings, thus eliminating any fact disputes. The issue here is when, under the undisputed facts, “the completion of” the contract took place within the meaning of Article 35(a). Plainly this is a question of contract interpretation. As the Board itself noted: “The determination of this issue depends upon when the contract requires the demand to be made.” This court has held many times that such a question of contract interpretation is one of law concerning which the Board’s decision has no binding effect. See Beacon Const. Co. v. United States, 314 F.2d 501, 161 Ct.Cl. 1 (1963) and W. H. Edwards Eng. Corp. v. United States, 161 Ct.Cl. 322 (1963), and cases therein cited. The Board concluded that the contract should be considered to have been completed by March 4, 1955, when the last items were delivered, because all the containers “were ultimately accepted by the Government on 18 May 1955 without additional work or costs in performance by appellant [plaintiff].” This is the full extent of its discussion and decision on this point. No supporting authority is cited. In the face of the cases above-mentioned, particularly Holton, Seelye" } ]

[ { "docid": "20908200", "title": "", "text": "made by the appellant’s motion to quash the warrants were not supported by offers of proof. Appellant’s bare allegations do not warrant a Franks v. Delaware hearing. See, United States v. Krauth, 769 F.2d 473, 479 (8th Cir.1985); United States v. Bulgatz, 693 F.2d 728, 732 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 444 (1983). The District Court’s denial of appellant’s motion for a Franks v. Delaware hearing is upheld. F. Jury Selection Next the appellant asserts that the jury selection process was prejudicial to his case because the petit jury selected did not represent a fair cross-section of the community. The Supreme Court in Duren v. Missouri, 439 U.S. 357, 364-67, 99 S.Ct. 664, 668-70, 58 L.Ed.2d 579 (1979) set out the requirements for a prima facie violation. In Duren, the Court held that the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to a systematic exclusion of the group in the jury selection process. Id. The appellant has failed to meet this burden. The appellant is black and he contends that the Eastern District of Missouri has consistently failed to include the black population in its venire. However, he has provided the Court with no basis for review because the record contains no facts with which to support his claim. There is absolutely no evidence presented to show that the alleged underrepresentation was due to “systematic exclusion” of blacks from the jury pool. Thus, we find the appellant’s argument lacking merit. G. Evidence The appellant’s final argument is that certain evidence, such as a gold ring, a watch, scales and other paraphernalia, should not have been admitted into evidence because their probative value was outweighed by the unfair prejudicial value and the items were not relevant to this case. See, Fed.R.Evid. 401, 403. The rele- vanee" } ]

[ { "docid": "23407698", "title": "", "text": "(charging Rioux with threats of suspension and termination); and (4) the government violated the Grand Jury Secrecy Rule. The government cross-appeals, claiming that the judge’s downward departure based on Rioux’s medical condition and “good deeds” was in error. DISCUSSION I. Sixth Amendment Challenge to Jury Selection System A. Introduction Rioux’s major argument is that the New Haven Division of the District of Connecticut’s jury selection system underrepresents Blacks and Hispanies in violation of the Sixth Amendment. He claims that, while this Court has not selected a single statistical method of analysis suitable for Sixth Amendment challenges, under any of the theories suggested by this and other Circuits, there is no question that Blacks and Hispanies were unconstitutionally underrepresented in Connecticut. We disagree. B. The Duren Test The District of Connecticut follows a three-step process to select a jury venire. First, the Clerk of the district court compiles a “master list” from voter registration tallies, and supplements this list with information from the Department of Motor Vehicles. Second, the Clerk weeds out from the master list those persons who are ineligible for jury service, resulting in a “qualified wheel.” Finally, the Clerk selects jury venires at random from the qualified wheel. The Sixth Amendment guarantees a criminal defendant a jury selected from a fair cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697-98, 42 L.Ed.2d 690 (1975). In Duren v. Missouri, the Supreme Court set forth the three elements that must be shown to establish a prima facie violation of the fair-cross-section requirement: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). Rioux has satisfied the first prong of the Duren test: Blacks and Hispanies are unquestionably “distinctive”" }, { "docid": "20010271", "title": "", "text": "there had been any systematic exclusion of a distinctive group,” as required by U.S. v. Robertson, 45 F.3d 1423, 1439 (10th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 133, 133 L.Ed.2d 81 (1995). The Sixth Amendment grants a defendant the right to a jury pool comprised of a fair cross-section of the community. Id. To establish a prima facie violation of the Sixth Amendment fair cross-section requirement, the defendant must show: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. U.S. v. Edwards, 69 F.3d 419, 437 (10th Cir.1995) (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668-69, 58 L.Ed.2d 579 (1979)). We do not believe that the district court erred in concluding that Genaro failed to establish the systematic exclusion element of the Duren test. Here, Genaro failed to allege any facts demonstrating that any underrepresentation of minorities in this particular venire was not merely a random episode of an otherwise competent jury selection system in the District of Wyoming. Furthermore, nothing in the record suggests that any underrepresentation resulted from a system of selecting prospective jurors that is inherently flawed at obtaining venires which fairly represent the ethnic breakdown of the community. In Duren, the Court found that the defendant had established systematic exclusion when he demonstrated that “a large diserepancy occurred not just occasionally, but in every weekly venire for a period of nearly a year” and defendant “established when in the selection process the systematic exclusion took place.” 439 U.S. at 366, 99 S.Ct. at 669. See also Brown v. Lockhart, 781 F.2d 654, 657 (8th Cir.1986) (remanding for an evidentiary hearing defendant’s allegations that a jury selection system excluded blacks over a five year period and that the jury selection system was tainted by a deliberately exclusionary operation)." }, { "docid": "23158187", "title": "", "text": "registration lists, and concluding defendants had not shown the racial composition of the venire was the result of anything other than random selection. To establish a prima facie violation of the requirement that a jury represent a fair cross-section of the community, a defendant must show that the group excluded is a distinctive group in the community, that the representation of the group in jury venires is not fair and reasonable in relation to the number of such persons in the community, and that the group’s under-representation is due to the systematic exclusion of the group in the jury selection process. See Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668-69, 58 L.Ed.2d 579 (1979). Dennis has not shown that under-representation of African-Americans on his jury venire was the result of systematic exclusion, but simply argues that systematic exclusion can be inferred from the under-representation in a single venire. This argument is without merit. See United States v. Robertson, 45 F.3d 1423, 1439 (10th Cir.), cert. denied — U.S.-, 116 S.Ct. 133, 133 L.Ed.2d 81 (1995). Cf. Duren, 439 U.S. at 366-67, 99 S.Ct. at 669-70 (showing of systematic underrepresentation of women in weekly venires justified inference of systematic exclusion due to automatic exemption from jury service granted to women upon request). VI. Stallings’ Motion for Severance Adam contends the trial court erred by denying his motion for severance under Fed.R.Crim.P. 14. Denial of a motion for severance is subject to reversal only for abuse of discretion. United States v. Scott, 37 F.3d 1564, 1579 (10th Cir.1994), cert. denied - U.S. -, 115 S.Ct. 1324, 131 L.Ed.2d 203 (1995). It is preferred that pei’sons charged together with conspiracy be tried together. 37 F.3d at 1579. Severance is required by Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). Zafiro recognized that evidence admissible only" }, { "docid": "16768984", "title": "", "text": "names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Id. at 538, 95 S.Ct. 692 (citation omitted). A prima facie ease of a fair cross section violation requires the defendant to show: 1) that the group alleged to be excluded is a “distinctive” group in the community, 2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). We are not prepared to hold that a complaint such as Gunn’s triggers fair cross section analysis because we do not believe that a group of persons defined by their prior jury service and alleged disposition to render a particular verdict can be “distinctive” in the community for purposes of the first Duren element. Gunn therefore fails to make out a prima facie violation of the fair cross section requirement. Moreover, the district court in this case found that the panel was impartial, a finding entitled to deference and reversible only upon an abuse of discretion. See United States v. Apodaca, 666 F.2d 89, 94 (5th Cir.1982) (finding no abuse of discretion in denying a challenge for cause where a potential juror formerly connected with the FBI had averred that she could be impartial in weighing the testimony of FBI witnesses). This case presents no such abuse of discretion, particularly where Hill’s counsel asked the potential jurors whether their prior jury service would impact their ability to decide this case fairly and impartially, Gunn’s counsel stressed that seated jurors would be required to exercise their own independent judgment and decide the case based on the facts, and no juror indicated in response to these questions that they doubted their ability to so serve. We conclude that neither an abuse of discretion nor a constitutional error" }, { "docid": "6676109", "title": "", "text": "of those appearing for juror orientation, were Hispanic. These data form the evidentiary base for Pion’s sweeping claim that “Hispanic minority members are so grossly underrepresented among federal juries as to constitute a ‘systematic exclusion of the group in the jury-selection process’ ” (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979)). The district court rejected the Pion claim on the fundamental ground that the Amended Jury Plan for the District of Massachusetts [“Jury Plan”] is as broadly inclusive as any in the nation and has been expressly approved under the Federal Courts Administration Act of 1992, codified at 28 U.S.C. § 1863(b)(2) (1992). On appeal, Pion nonetheless insists that the Jury Plan results in such substantial Hispanic underrepresentation as to render it constitutionally infirm under the “systematic exclusion” standard employed in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). The burden is on the defendant to establish a prima facie case of unconstitutional disproportionality. United States v. Benmuhar, 658 F.2d 14, 19 (1st Cir.1981). We conclude that Pion has not demonstrated that any Hispanic underrepresentation on his jury venire was due to their “systematic exclusion in the jury-selection process.” Id. 439 U.S. at 366, 99 S.Ct. at 669 (emphasis added). Consequently, he has failed to establish a prima facie violation of the “fair-cross-section requirement.” Id. at 364, 99 S.Ct. at 668; United States v. Hafen, 726 F.2d 21, 23 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984). The government agrees that Hispanics constitute a distinctive ethnic group in the Eastern Division of the District of Massachusetts, thus conceding the first prong of the three-part Duren test. See Duren, 439 U.S. at 364, 99 S.Ct. at 668. The government counters, however, that Pion failed to make the two other Duren showings: that Hispanic representation on jury venires “is not fair and reasonable in relation to the number of such persons in the community” and that any such underrepresentation is “due to systematic exclusion of [Hispanics] in the jury-selection process.” Id." }, { "docid": "11108587", "title": "", "text": "of these departures from Iowa’s due process requirements resulted in a denial to [Wharton-El] of fundamental fairness, in violation of the Sixth and Fourteenth Amendments.” We reject cumulative error as a basis for habeas relief. Girtman v. Lockhart, 942 F.2d 468, 475 (8th Cir.1991); Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1626, 113 L.Ed.2d 723 (1991). “[E]ach habeas claim must stand or fall on its own.” Scott, 915 F.2d at 1191. Accordingly, we affirm the district court’s denial of habeas relief on these grounds. Wharton-El next argues that the jury selection procedures totally excluded African-Americans from the venire, in violation of the Sixth Amendment as applied to the states through the Fourteenth Amendment. Wharton-El showed no evidence of systematic exclusion of African-Americans; he relies simply on the absence of African-Americans from the venire. The Sixth Amendment guarantees a criminal jury composed of a fair cross-section of the community. United States v. Garcia, 991 F.2d 489, 491 (8th Cir.1993). To establish a violation of this guarantee, Wharton-El must show: (1) that African-Americans are a “distinctive group in the community;” (2) that the representation of African-Americans in jury pools is not “fair and reasonable in relation to the number of [African-Americans] in the community;” and (3) that “this underrepresentation is due to systematic exclusion of [African-Americans] in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); Floyd v. Garrison, 996 F.2d 947, 949 (8th Cir.1993). Although Wharton-El can establish the first element, Garcia, 991 F.2d at 491, he has failed to meet either the second or third element of the Duren test. Specifically, Wharton-El presented no reliable evidence of either the percentage of African-Americans in Dubuque County or of the percentage of African-Americans in Dubuque County jury pools. Wharton-El has shown only that no more than one African-American served on a jury in Dubuque County in the eighteen months before his trial; he has not shown that this is out of line with the percentage of African-Americans in Dubuque County. Further, Wharton-El has" }, { "docid": "20049557", "title": "", "text": "the master list), which was then reduced to the 38 persons who composed Johnson’s venire. III. Johnson challenges both the process by which his jury was selected and the identifications of Welke, Hyland, and Appleby. We take up the jury challenge first. Johnson maintains that Commissioner Rentmeester’s actions in excluding persons age 18-25 violated his Sixth Amendment right to a jury composed of a fair cross section of the community. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court established the framework for addressing such a challenge. In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of this group in the jury-selection process. Id. at 364, 99 S.Ct. at 668-69. Once the defendant establishes a prima facie violation, the state bears the burden of justifying the challenged infringement by demonstrating a significant state interest that is incom patible with attainment of a representative jury. Id. at 368, 99 S.Ct. at 670-71. If the state cannot do so, the defendant will have established a Sixth Amendment violation and is entitled to a new trial by a jury drawn from a fair cross section of the community. Johnson argues that we should not apply the Duren test for a prima facie violation where, as in this case, a jury commissioner admits that he intentionally singled out a specific group in the community and systematically excluded those persons from the jury pool. Johnson relies on two First Circuit cases for this claim. See Smith v. Cunningham, 782 F.2d 292, 293 (1st Cir.1986); Barber v. Ponte, 772 F.2d 982, 999-1000 (1st Cir.1985), cert. denied, 475 U.S. 1050, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). Specifically, Johnson hopes to rely on the following dicta from" }, { "docid": "17084681", "title": "", "text": "United States District Judge (Apr. 26, 2010) (“Heinemann Apr. 26 Letter”) at 3, ECF No. 84; see also Heinemann Jan. 19 Letter at 2.) 2. Overview of Barlow’s Fair Cross-Section Claim The 60-person venire for Barlow’s trial contained no African-American males. Barlow contends that this resulted from the way in which the Jury Department determines whether a juror should be disqualified because of his or her responses to the questions on the jury questionnaire dealing with whether he or she has been convicted of a felony or is the subject of a pending felony charge. Barlow further contends that the lack of African-American males in his venire violated his right to a jury drawn from a fair cross-section of the community. 3. Analysis The Sixth Amendment entitles criminal defendants to trial by jury. See U.S. Const, amend. VI. “[A]n essential component” of the right to trial by jury “is ... the selection of a petit jury from a representative cross section of the community....” Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court set forth a three-part test to be used to determine whether the fair cross-section requirement has been violated. Under the Duren test, a criminal defendant can establish a prima facie case that his fair cross-section rights were violated by showing “(1) a group qualifying as ‘distinctive’ (2) is not fairly and reasonably represented in jury venires, and (3) ‘systematic exclusion’ in the jury-selection process accounts for the underrepresentation.” Berghuis v. Smith, — U.S. -, 130 S.Ct. 1382, 1392, 176 L.Ed.2d 249 (2010) (citing Duren, 439 U.S. at 364, 99 S.Ct. 664). Notably, the defendant need not show discriminatory intent to prevail on a fair cross-section claim. See United States v. Biaggi, 909 F.2d 662, 677 (2d Cir.1990). The Court applies this analysis below and concludes that Barlow has not shown that his Sixth Amendment rights were violated. a. Distinctive Group Barlow contends that African-American males are a distinctive group. The Supreme Court recently stated that" }, { "docid": "22561388", "title": "", "text": "exclusion of African-American ve-nire persons. “A criminal defendant has a Sixth Amendment right to a jury pool comprised of a fair cross section of the community.” United States v. Robertson, 45 F.3d 1423, 1439 (10th Cir.) (citing Duren v. Missouri, 439 U.S. 357, 358-59, 99 S.Ct. 664, 665-66, 58 L.Ed.2d 579 (1979)), cert. denied, — U.S. -, — U.S. -, 115 S.Ct. 2258, 115 S.Ct. 2259, 132 L.Ed.2d 265, 132 L.Ed.2d 265 (1995). To establish a prima facie violation of the Sixth Amendment-based fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren, 439 U.S. at 364, 99 S.Ct. at 668; see also United States v. Yazzie, 660 F.2d 422, 425-26 (10th Cir.1981), cert. denied, 455 U.S. 923, 102 S.Ct. 1282, 71 L.Ed.2d 464 (1982). We conclude Defendant Edwards has failed to establish a prima facie violation of the fair-cross-section requirement. Although Defendant Edwards relies on statistics outside the record in an attempt to show that the representation of African-Americans is “not fair and reasonable in relation to the number of such persons in the community,” Duren, 439 U.S. at 364, 99 S.Ct. at 668, Defendant Edwards has failed to show that a “systematic exclusion” of African-Americans occurred. By chance, the venire had one non-caucasian. In the absence of a showing of a “systematic exclusion” of African-Americans, Defendant Edwards has failed to demonstrate a prima facie violation of the fair-cross-section requirement. See Duren, 439 U.S. at 364, 99 S.Ct. at 668-69; Robertson, 45 F.3d at 1439. Consequently, we reject Defendant Edward’s request to remand to the district court for an evidentiary hearing. B. Fed.R.Crim.P. 15 Defendant Edwards next argues that the district court erred in denying his motion to depose H. Grist pursuant to Fed.R.Crim.P. 15. We disagree. Fed.R.Crim.P. 15 governs" }, { "docid": "7589314", "title": "", "text": "rights to confrontation and due process were violated by the trial court’s ruling that his counsel could not see the state serologist’s handwritten notes or have his expert serologist present during the state serologist’s testimony to assist him. A. 1. Ford first contends that the underrepre-sentation of women and “young adults” between the ages of 18 and 29 and exclusion of college students from the pool from which his jury was selected in Scott County denies his right, under the sixth amendment, to a petit jury selected from a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The Duren Court set forth the criteria necessary to establish a prima facie violation of the fair-cross-section requirement. The defendant must show “(1) that the group alleged to be excluded is a 'distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Id. at 364, 99 S.Ct. at 668. Even if a prima facie fair-cross-section violation has been established by the defendant, the government may overcome the right to a proper jury by proffering a significant state interest that manifestly and primarily advance “those aspects of the jury selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group.” Id. at 367-68, 99 S.Ct. at 670. With respect to the first part of the prima facie test, women undoubtedly are a distinctive group. Id. at 364, 99 S.Ct. at 668; Taylor v. Louisiana, 419 U.S. 522, 531, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975). Young adults and college students, however, do not comprise distinctive groups. Although the Supreme Court has declined to define the term “distinctive group,” Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137 (1986), several circuits have adopted the following three-prong test in determining whether young adults are" }, { "docid": "14752614", "title": "", "text": "Court’s conclusion to the contrary, he argues, constitutes an unreasonable application of clearly established federal law as announced in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). For the reasons discussed below, we agree that the Michigan Supreme Court unreasonably applied federal law in rejecting Petitioner’s Sixth Amendment challenge to the composition of his venire panel. A. Clearly Established Right to Impartial Jury Drawn from a Fair Cross-Section of the Community Under the Sixth Amendment, a criminal defendant is entitled to a trial “by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI. In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Supreme Court held that the Sixth Amendment right to an impartial jury includes the right to a jury drawn from a fair cross-section of the community. Id. at 530, 95 S.Ct. 692. The Court, however, “impose[d] no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” Id. at 538, 95 S.Ct. 692. Instead, the Court held that defendants are entitled to a jury selection process that does “not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Id. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Court clarified the rule announced in Taylor. There, the Court held that in order to establish a violation of the Sixth Amendment’s fair cross-section requirement, a defendant must make a prima facie showing (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepre-sentation is due to systematic exclusion of the group in the jury selection process. Id. at 364, 120 S.Ct. 1495. To meet" }, { "docid": "2474871", "title": "", "text": "French, and Tolefree make various challenges to their respective sentences. II. Womack, who is black, initially asserts that his trial violated his due process rights under the Fifth Amendment and his right to an impartial jury under the Sixth Amendment because there were no black individuals on the venire panel. In essence, he claims that he was denied his constitutional right to a jury selected from a fair cross-section of the community where he was tried. In Duren v. Missouri, the Supreme Court set forth the elements that a defendant must establish in order to state a prima facie violation of the fair-cross-section requirement. Specifically, the defendant must show: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). Womack meets the first element in that blacks constitute a “distinctive” group in the Minnesota community. Nonetheless, Womack’s claim fails because he has not presented any evidence of the percentage of blacks in the Minnesota community or of the percentage of blacks on 1991 Minnesota venire panels. Accordingly, we are unable to gauge whether blacks have not been fairly and reasonably represented on Minnesota venire panels in relation to their presence in the community. See id. Moreover, he has failed to produce any evidence to show that any underrepresentation was due to a systematic exclusion of blacks from venire panels in the District of Minnesota. As we have stated previously, “[evidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion.” Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 207, 107 L.Ed.2d 160 (1989). Womack next argues that the government failed to produce certain discovery materials (including wiretap transcripts, witness statements, etc.) to his" }, { "docid": "16768983", "title": "", "text": "assertion is based not on the fact that the venire contained only one black person, but on: 1) the fact that several potential jurors had previously served on juries in cases where the same prosecutor had represented the government, and 2) Gunn’s counsel’s allegation that the prosecutor “hasn’t lost any cases” (an allegation that, as the district court pointed out, was completely untrue). Thus, Gunn’s argument goes, the venire was not a fair and impartial cross section of the community because it was full of potential jurors who had shown a willingness and propensity to convict, especially when paired with this particular prosecutor. The Supreme Court held in Taylor v. Louisiana that “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Explaining the holding, the Taylor Court emphasized that: “Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Id. at 538, 95 S.Ct. 692 (citation omitted). A prima facie ease of a fair cross section violation requires the defendant to show: 1) that the group alleged to be excluded is a “distinctive” group in the community, 2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). We are not prepared to hold that a complaint such as Gunn’s triggers fair cross section analysis because we do not believe that a group of persons defined by their prior jury service and alleged disposition to render a particular verdict can be “distinctive” in the community for purposes of" }, { "docid": "2935023", "title": "", "text": "VANCE, Circuit Judge: Charles Allen Tuttle and Dean Frederick Vereen were convicted of conspiracy to distribute cocaine and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and § 846. On this appeal from their convictions they raise numerous issues, only one of which merits our attention here. Appellants assert that their sixth amendment right to be tried by a jury drawn from a source representing a fair cross-section of the community was violated because the petit jury wheels in the Atlanta division of the northern district of Georgia underrepresent blacks. Appellants alternatively urge that this underrepresentation violates the statutory provisions of the Jury Selection and Service Act of 1968. For reasons that appear below we reject appellants’ arguments and affirm their convictions. There can no longer be any doubt that the sixth amendment guarantees a criminal defendant the right to a jury selected from a group representing-- a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Obviously, a perfect match between the composition of a community and the composition of a jury venire is not possible, given the limitless variations in human characteristics, and the Constitution does not require so much. The Supreme Court in Duren set forth the elements a defendant must establish to demonstrate a prima facie violation of the fair cross-section requirement: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process. 439 U.S. at 364, 99 S.Ct. at 668. Appellants here, like others before them, stumble on the second requirement of Duren. While the Supreme Court has never pronounced an immutable threshold disparity that a defendant must show, Gibson v. Zant, 705 F.2d 1543, 1547 (11th Cir.1983), this circuit" }, { "docid": "23544962", "title": "", "text": "Selection and Service Act. United States v. Herbert, 698 F.2d 981, 984 (9th Cir.), cert. denied, — U.S. ---, 104 S.Ct. 87, 78 L.Ed.2d 95 (1983). The Act provides that, “It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” 28 U.S.C. § 1861. The Act thus codifies the Supreme Court’s decisions interpreting the fair cross-section requirement of the Fifth and Sixth Amendments in the context of the selection and composition of petit .ju ries, and extends their applicability to the selection and composition of grand juries. The Supreme Court has established a three-part test for determining whether a jury selection process passes constitutional muster. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). The test is: In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. Appellants contend that women (who constitute 51% of Idaho’s population) were significantly underrepresented on the grand jury and in the venire from which it was drawn. The affidavit showed that only 30% (7 of 23) of the grand jury members and only 42% (37 of 88) of the persons in the venire were women. Appellants’ challenge clearly meets the first prong of the Duren test. Women constitute a distinctive group in the community. Duren, 439 U.S. at 364, 99 S.Ct. at 668. Appellants’ challenge, however, fails to satisfy the second prong of the Duren test, which requires that the defendant show underrepresentation in “venires” from which “juries” are selected. Id." }, { "docid": "2461148", "title": "", "text": "over, we conclude that the district court correctly held that the jury selection plan did not substantially fail to comply with the random selection requirements of the JSSA. B. The Sixth Amendment “Fair Cross-section” Requirement. Appellants argue that the “fair cross-section” requirements of both the JSSA and the Sixth Amendment entitled them to a venire panel that contained at least some African-Americans unless the government demonstrated that the under-representation was not due to a systematic exclusion of African-Americans in the jury selection process. The Sixth Amendment requires that the jury venire from which a jury is selected represent a “fair cross-section” of the community. Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 696-97, 42 L.Ed.2d 690 (1975). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court held that a defendant may establish a prim a facie fair cross-section violation by showing (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S.Ct. at 668. The government may rebut this prima facie case by showing that “a significant state interest [is] manifestly and primarily advanced by those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group. Id. at 367-68, 99 S.Ct. at 670. Appellants have satisfied the first prong the Duren test, but they have not satisfied the other two. Duren and its progeny make crystal clear that a defendant’s prima facie case includes all three elements listed above, and each must be established before the government is required to justify an infringing selection procedure. See Duren, 439 U.S. at 367-69, 99 S.Ct. at 670-71; Ford v. Seabold, 841 F.2d 677, 681 (6th Cir.1988). Appellants have not established Duren’s second prong, i.e., that the representation of African-Americans in" }, { "docid": "23658098", "title": "", "text": "selection of Petitioner’s jury venire, we do not believe that the impact of this irregularity was to deprive Petitioner of either his sixth or fourteenth amendment rights. Contrary to Ill.Rev.Stat. ch. 78, ¶¶ 2 and 4 (1979), the official responsible for compiling the jury venire from which Petitioner’s petit jury would ultimately be chosen exempted from jury service those persons who indicated on their jury questionnaires that they were seventy years of age or older. Although this Illinois statute expressly provides for the exemption of certain groups of individuals — i.e., persons un der the age of eighteen — there is no provision which exempts persons seventy years of age or older. Petitioner’s sixth and fourteenth amendment arguments focus on this unwarranted exemption. The primary issue presented under these facts is whether the exclusion of this group of individuals deprived Petitioner of his sixth amendment right to a jury selected from a fair-cross-section of the community. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court held that, in order to establish a prima facie violation of the fair-cross-section requirement, a defendant must show: (1) that the group alleged to be excluded is a “distinctive group” in the community; (2) that the representation of this group in the venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and, (3) that the underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S.Ct. at 668. The district court concluded that Petitioner had not met the first prong of the Duren test and, as such, had not raised a prima facie case of a sixth amendment violation. We agree. Exactly what constitutes a “distinctive group” is a rather amorphous concept in that the Supreme Court has not burdened the term “distinctive group” with a precise definition. Lockhart v. McCree, 476 U.S. 162, 174, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137 (1986). Age has not been a factor that has previously defined a group as a" }, { "docid": "10882567", "title": "", "text": "members of the venire. Given Davis's inadequate explanation of why the jurors should be questioned separately and his own failure to create the record, we cannot say the State deprived Davis of the means to establish systematic exclusion. We disagree with the dissent. The state judge’s failure to question the jurors individually does not require that we shift the burden of proof to the State when Davis had adequate opportunity to establish the record himself, even though the trial judge did not question the jurors. FLAUM, Circuit Judge, dissenting: This case presents the difficult jurisprudential question of whether the Appellee’s sixth amendment right to a jury venire composed of a representative cross-section of the community was violated under the Supreme Court’s decisional commands in this troublesome area of the law. In order to prove a prima facie case of such a violation, the Appellee has to show three things: (1) that blacks are a distinctive group in the community; (2) that black representation on jury venires was not fair and reasonable in relation to their numbers in the community; and (3) that the underrepresentation resulted from systematic exclusion of blacks. See Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). The majority concludes, through succinct, well-reasoned analysis with which I agree, that the Appellee has successfully met the first two requirements. The majority also finds, however, that the Appel-lee’s proof of systematic exclusion is wanting so that summary judgment should be entered for the Appellant. With that I cannot agree. I believe that the Appellee has successfully made out a prima facie case that his sixth amendment right to a jury selected from a venire made up of a cross-section of the legislatively mandated community has been violated. Since the state has failed to rebut that prima facie case by showing a significant state interest justifying the underrepresentation, I respectfully dissent. The majority advances two arguments in support of its finding that the Appellee failed to show that the underrepresentation of blacks on his venire was due to systematic exclusion. First, the majority states" }, { "docid": "17084682", "title": "", "text": "L.Ed.2d 690 (1975). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court set forth a three-part test to be used to determine whether the fair cross-section requirement has been violated. Under the Duren test, a criminal defendant can establish a prima facie case that his fair cross-section rights were violated by showing “(1) a group qualifying as ‘distinctive’ (2) is not fairly and reasonably represented in jury venires, and (3) ‘systematic exclusion’ in the jury-selection process accounts for the underrepresentation.” Berghuis v. Smith, — U.S. -, 130 S.Ct. 1382, 1392, 176 L.Ed.2d 249 (2010) (citing Duren, 439 U.S. at 364, 99 S.Ct. 664). Notably, the defendant need not show discriminatory intent to prevail on a fair cross-section claim. See United States v. Biaggi, 909 F.2d 662, 677 (2d Cir.1990). The Court applies this analysis below and concludes that Barlow has not shown that his Sixth Amendment rights were violated. a. Distinctive Group Barlow contends that African-American males are a distinctive group. The Supreme Court recently stated that the distinctive group showing in the Duren analysis is “in most cases, easily made.” Berghuis, 130 S.Ct. at 1388. There is no question that African-Americans are a distinctive group for purposes of the Duren test. See, e.g., United States v. Rioux, 97 F.3d 648, 654 (2d Cir.1996) (stating that African-Americans are “unquestionably distinctive”). Moreover, although never explicitly decided by the Supreme Court or Second Circuit, it is also clear that men are a distinctive group for purposes of the Duren test. Specifically, in Taylor v. Louisiana, the Supreme Court found that women are a distinctive group for purposes of the fair-cross section requirement and, in doing so, quoted from an earlier Supreme Court decision’s statement that “ ‘[t]he truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both.... [A] distinct quality is lost if either sex is excluded. The exclusion of one [sex] may indeed make the jury less representative of the community than would be true if an economic or" }, { "docid": "8024194", "title": "", "text": "955 (N.D.Cal.1981). Sixth Amendment Claim Appellants’ Sixth Amendment contention fares no better. The Sixth Amendment guarantees a criminal defendant the right to a trial “by an impartial jury.” The Supreme Court has held that an “impartial jury” is one drawn from a “representative cross-section of the community.” Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires for which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). Appellants contend that the disparity between the percentage of whites in their venire and the percentage of eligible white jurors in the District of Columbia suggests that whites are systematically excluded from juries in the district court. They point to the evidence that although whites comprise approximately one-third of the eligible jurors in the district, they comprised only 23% of the venire in their case. Yet appellants cannot show on the basis of this single instance of disparity that there has been a systematic exclusion of whites from the jury. Cf., e.g. Duren, 439 U.S. at 366, 99 S.Ct. at 669-70 (reversing conviction on the basis of jury selection prae-tices over a year); Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 1281 n. 17, 51 L.Ed.2d 498 (1977) (same, over a decade). Underrepresentation of a cognizable group in a single venire, without evidence of a greater pattern, is insufficient to establish the “systematic exclusion of the group” required by Duren, 439 U.S. at 364, 99 S.Ct. at 668. See, e.g., United States v. Ruiz-Castro, 92 F.3d 1519, 1527 (10th Cir.1996); United States v. Hardwell, 80 F.3d 1471, 1486 (10th Cir.1996); Ford" } ]

[ { "docid": "17854360", "title": "", "text": "refuse to reopen what has been decided, not a limit to their power. [Citing cases.]” Furthermore, it is the duty of federal courts at any stage in the course of a proceeding to give effect to state law. In Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246, the court quoted from its previous decision in Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327, as follows: “ ‘Until such time as a case is no longer sub judice, the duty rests upon federal courts to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court.’ ” Under this pronouncement it appears plain that a District Court as well as this court is obligated to give effect to any change in state law made during the course of a proceeding, and we perceive no reason to doubt but that the obligation persists even though it requires further consideration of a question previously decided by a decree which under some circumstances may be regarded as final. This brings us to the second issue, that is, whether plaintiff’s demand for an accounting is barred by the survivorship clause of the partnership contract. A solution of this issue requires the answers to two questions, (1) Must the pronouncement in Lynch v. Ilg, 348 Ill.App. 545, 109 N.E.2d 362, a decision by an Illinois Appellate Court, be accepted as the law of the state? and (2) If so accepted, is the ruling in that case applicable to and controlling in the instant situation ? Both of these questions were decided adversely to the defendant by the Master and by the District Court. As already noted, the decision in Lynch was rendered in the interim between the decree of September 20, 1951 and that now under review. For this reason plaintiff contends that the decision cannot control because of its retroactive effect. In Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246, a question of state law, that of the state" } ]

[ { "docid": "12458367", "title": "", "text": "in proper cases to direct the entry of a judgment n. o. v., Neely v. Martin K. Eby Constro. Co., Inc., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967). We have heretofore referred, at page 100, to the language of the Supreme Court of Florida when it answered our certified question, as follows: “The contention that the wholesomeness of a product should be determined on any standard other than its actual safety for human consumption, when supplied for that purpose * * * [is] one which we are persuaded has no foundation in the decided cases.” We must emphasize the words “actual safety” appearing in the above passage. Then, as already pointed out, page 101 ante, after the second trial below [the trial now under consideration] the Supreme Court of Florida, in McLeod v. W. S. Merrell Co., Div. of Richardson-Merrell, Inc., supra, May 5, 1965, took occasion to explain what it had meant in Green v. American Tobacco Company, Fla., 154 So.2d 169. It said that on the facts of this case it had applied the rule of absolute or strict liability (see quotation alluded to). On April 28, 1965, the Supreme Court of Florida decided the case of Foley v. Weaver Drugs, Inc., 177 So.2d 221. The accused product was a bottle which contained reducing pills. When the prospective user attempted to open the bottle by unscrewing the top it broke, fragmented, and thus lacerated her right wrist. Suit was brought on negligence and breach of implied warranty. The Supreme Court held that a retailer’s implied-warranty liability as to food did not extend to this container. In the course of arriving at this decision, however, and referring to cases previously decided as to tinned meat, and canned sardines, the Court stated that it had twice previously affirmed the principle that “ * * * as to items of food or other products in the original package which are offered for sale for human consumption or use generally, a person who purchases such items in reliance upon the express or implied condition or assurance that they are" }, { "docid": "18446023", "title": "", "text": "Eaton Yale. Plaintiff duly filed these motions for judgment n. o. v. or for a new trial, contending that both the jury verdict and the instructions were contrary to the evidence and the law. At the outset we deny plaintiff’s motion for judgment n. o. v. A judgment n. o. v. is appropriate only in those circumstances where, without weighing the credibility of witnesses, it appears that the evidence admits of only one conclusion. There was ample evidence ■ in this case from which a jury could have concluded that the forklift was not in a defective condition unreasonably dangerous to the user. In respect to plaintiff’s motion for a new trial, the only tenable basis for granting it lies in plaintiff’s contention that our instruction was contrary to the law. The decision of the Pennsylvania Supreme Court in Berkebile v. Brantley Helicopter Corp., Pa., 337 A.2d 893 (1975) breathed new life into plaintiff’s otherwise unavailing argument that our instructions were erroneous insofar as we included the- unreasonably dangerous language of § 402A. II. The question presented is whether the Berkebile opinion renders that portion of our instruction to the jury relating to “defective condition” erroneous. At the outset we note that, if Berkebile indeed suggests that such an instruction is improper under Pennsylvania law, we are obliged to apply the changed law retroactively in this case and grant plaintiff’s motion for a new trial. “[U]ntil such time as a case is no longer sub judice, the duty rests upon the federal courts to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court.” Vandenbark v. Owens-Illinois, 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327 (1941). Inasmuch as plaintiff’s motions were taken under advisement and decision was still pending in May, 1975, when Berkebile was decided, we must apply any change Berkebile works in Pennsylvania law. The Opinion of the Court in Berkebile is an ambitious one, striving, as it does, to clarify or restate several crucial principles of strict liability in tort. Our focus here" }, { "docid": "7571114", "title": "", "text": "Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941) the Court directed courts of appeals sitting in diversity cases to follow new state court decisions occurring subsequent to the date of the district court judgment, but before the court of appeals decision. Even more telling was the Court’s action in Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944), where it vacated a Court of Appeals decision for failing to consider a new state court opinion that (like Creviston) was handed down after the time for rehearing had expired. In Huddleston, the petitioners had sought a second rehearing some six months after entry of judgment, a period considerably longer than that before us. The Supreme Court indicated that so long as the case was “sub judice” the court of appeals should have entertained the petition for rehearing based on a change in state law; it did not indicate, however, precisely what the bounds of the term' “sub judice” might be. Under circumstances similar to Huddleston, we may consider petitions filed after rehearing has been denied, and even after the time to petition for rehearing has passed, see F.R.A.P. 40. The question we must determine is whether we should also entertain rehearings when a petition for certiorari already has been filed. Huddleston seems to indicate that we should. Instead of reversing the court of appeals, and deciding the state law issues itself, the Supreme Court there vacated the court of appeals decision, and remanded to that court to permit it to determine the issues of state law in the first instance, on the basis of the new state court decision. For us to refuse to consider petitions for rehearing under the circumstances present here merely because a petition for certiorari has been filed would be, it seems to us, wasteful, for under the Hud-dleston procedure the Supreme Court would not reach the merits of the controversy, but would vacate our decision and order us to reconsider on the basis of the recent state opinion. Hence we conclude that in the interests" }, { "docid": "23436575", "title": "", "text": "executing his duties according to existing law; (2) prior history of the rule shows the primary purpose underlying Liepelt was the court’s decision to prevent excessive verdicts, which the Ingle verdict was not, thus, in Ingle retroactive application would not further the purpose of the rule nor would prospective application “retard” its operation; (3) the courts in the three cases relied upon by the Supreme Court in Liepelt prospectively applied the new rule with respect to the income tax instruction; (4) applying Liepelt retroactively would produce substantial inequitable results to the plaintiff. Notwithstanding the appeal of such rationale, we have serious doubts the doctrine of nonretroactivity is applicable here. In Bradley the Court reasoned: This Court in the past has recognized a distinction between the application of a change in the law that takes place while a case is on direct review, on the one hand, and its effect on a final judgment under collateral attack, on the other hand. Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 1731, 1736, 14 L.Ed.2d 601 (1965). We are concerned here only with direct review. 416 U.S. at 710-11, 94 S.Ct. at 2016 (footnotes omitted). Although it would appear Bradley makes a viable distinction between cases on direct review and collateral attack, other recent authority makes this assumption seem questionable. The Bradley-Schooner Peggy rule gives presumptive weight to applying the change of law retroactively unless manifest injustice would follow. On the other hand, the Chevron tests provide a more neutral, objective basis for analyzing whether a change in law should be applied only prospectively. When constitutional or procedural rules are involved the Linkletter-Williams-Chevron rule is clearly applicable. However, where there is a decisional change of state or federal substantive law between the time of trial and appeal, it would appear the Schooner Peggy doctrine is controlling. See Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973); Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941). We conclude we are controlled by the language in Bradley relying on Thorpe v. Housing Authority of" }, { "docid": "2630572", "title": "", "text": "I know of no court which can contest its obligation. United States v. Schooner Peggy, supra, 5 U.S. at 110, 2 L.Ed. 49. Since a federal court sitting in diversity must apply the governing state law, see Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we must abide by intervening decisions handed down by New York’s highest court. See Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944) (per curiam); 1A J. Moore, Federal Practice ¶ 0.307[3] (2d ed. 1980). The plaintiff argues, however, that “[e]ven though the Court of Appeals had not resolved the consortium issue, there was sufficient basis to object at that time,” and that the hospital’s failure to object to the charge bars appellate review. See Fed. R.Civ.P. 51. We find this contention to be meritless for several reasons. First, the very purpose of Rule 51 is to alert the trial judge to errors in the charge so they can be corrected before the jury retires. See 5A J. Moore, Federal Practice 151.04 at 51-30 through 51-35 (2d ed. 1980). At the time the loss of consortium charge was given, New York authority was divided on whether such damages were recoverable. We feel that the policies supporting the rule are far less compelling under these circumstances. See General Beverage Sales Co. v. East-Side Winery, 568 F.2d 1147, 1152 (7th Cir. 1978) (failure to object does not bar appellate review where applicable law had changed in the interim). Moreover, the purposes of Vandenbark v. Owens-Illinois Glass Co., supra, would be largely frustrated by a literal application of Rule 51 in these circumstances, since the intervening state decision would be applied “only in those rare cases where counsel had the foresight to predict the change.” General Beverage Sales Co. v. East-Side Winery, supra, 568 F.2d at 1152. Finally, even accepting the plaintiff’s argument that the hospital should have objected to the charge, we would reverse the award on our own initiative under" }, { "docid": "1284886", "title": "", "text": "and affirmed the judgment of the Court of Appeals dismissing the action. The Court held that the possession of the truck by Simmons was for a definite purpose, namely, to haul the furniture from one point to another in the City of Nashville; that he had no general custody of the truck and no permission to use it for general purposes; and that the distinction between the Stovall case and the Hubbard case was the difference between general custody and a limited permission; it repeated with approval what was previously said in the Hubbard case and distinguished, the Foley case from it on the ground that in the Foley case the driver of the truck had general permission to use it. This appears to be the latest ruling of the Supreme Court of Tennessee upon the subject. Appellant in an able brief recently received attacks this ruling as unsound in view of the previous rulings of the Court, and as being unsupported by the authorities from other States relied on therein. But under the established rule in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, in cases of this kind, we are required to follow the state law upon the subject, regardless of our agreement or disagreement with it. We are not authorized to act as a reviewing court for the purpose of determining whether the ruling of the state court of last resort is sound. West v. American T. & T. Co., 311 U.S. 223, 236-237, 61 S.Ct. 179, 85 L.Ed. 139. The Court of Appeals applies the law as it is at the time the judgment is reviewed, even though the law has been changed since the judgment of the District Court. Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327; Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246. In our opinion, the controlling rule of law of Tennessee, as it presently exists, is as expressed in the case of Moore v. Liberty Mutual Ins. Co., supra, its latest ruling on the question," }, { "docid": "21588838", "title": "", "text": "A.2d 1292, 1297 (R.I.1982) (comment f); Roman v. Westinghouse Electric Co., 114 R.I. 451, 456, 336 A.2d 555, 558 (1975) (comment m); Ritter, 109 R.I. at 190, 283 A.2d at 262 (comment g). Squibb argues that because Rhode Island had yet to affirmatively apply comment k, the court’s eventual adoption of the comment amounts to a change in the law that entitles it to a new trial. Squibb devotes its entire brief to argument concerning the appropriateness of a new trial in cases where there has been a change in the law before the decision has become final. See Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941). The proposition itself is unquestionably valid. In Vandenbark, the court indicated that [T]he dominant principle is that nisi pri-us and appellate tribunals alike should conform their orders to the state law as of the time of the entry. Intervening and conflicting decisions will thus cause the reversal of judgments which were correct when entered. 311 U.S. at 543, 61 S.Ct. at 350. Nowhere in its brief, however, has the defendant argued why the facts of this case would support a new trial. The decision of the Rhode Island court was clearly “intervening,” but it is not clear that it is “conflicting” or that it states a sufficiently new proposition to require remand. Instead, this case appears to be governed by the same law under which the trial court instructed. Squibb mentions five differences between the instruction given by the trial court and the law as stated by the Rhode Island Supreme Court. We have reviewed these asserted differences to determine, first, if they could have led to a different outcome in this case. We have then looked to see if any remaining differences are properly considered sufficiently new law that Squibb should be exempted from the requirement of contemporaneous objection. We conclude that any possible errors in the district court's instructions that may have prejudiced Squibb should have been, but were not, objected to, and thus cannot support Squibb’s demand for a new trial. The manufacturer" }, { "docid": "7571113", "title": "", "text": "for rehearing, F.R.A.P. 26(b), 40, and to modify an erroneous decision although the time for rehearing may have expired. See United States v. Certain Land, 420 F.2d 370 (2d Cir. 1969) (deleting award of interest three months after original decision). See also National Comics Publishers v. Fawcett, 198 F.2d 927 (2d Cir. 1952) (court of appeals may change and modify mandate of prior term). Accord, United States v. 63.04 Acres of Land, 257 F.2d 68, 69 (2d Cir. 1958). This Circuit has long shown considerable willingness to correct what it believed an erroneous interpretation of the law when an intervening state decision seemed to indicate a better view. See Johnson v. Cadillac, 261 F. 878 (2d Cir. 1919), following McPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) (Cardozo, J.). In Johnson we modified, on appeal from a remand of the same case, a rule we had previously declared in remanding it, viewing the proper resolution of the controversy more important than rigid adherence to the law of the case. And in Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941) the Court directed courts of appeals sitting in diversity cases to follow new state court decisions occurring subsequent to the date of the district court judgment, but before the court of appeals decision. Even more telling was the Court’s action in Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944), where it vacated a Court of Appeals decision for failing to consider a new state court opinion that (like Creviston) was handed down after the time for rehearing had expired. In Huddleston, the petitioners had sought a second rehearing some six months after entry of judgment, a period considerably longer than that before us. The Supreme Court indicated that so long as the case was “sub judice” the court of appeals should have entertained the petition for rehearing based on a change in state law; it did not indicate, however, precisely what the bounds of the term' “sub judice” might be. Under circumstances similar to Huddleston," }, { "docid": "8902082", "title": "", "text": "Trust v. Field, 311 U.S. 169, 177-78, 61 S.Ct. 176, 85 L.Ed. 109 (1940). Commercial Standard is not an aberrant ruling; it is in line with state policies expanding the scope of tort liability, see Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968) and favoring the imposition of ultimate liability on the wrongdoers rather than on innocent third parties. See Card Construction Co. v. Ledbetter, 16 Cal.App.3d 472, 478-79, 94 Cal.Rptr. 570, 573-74 (1971); Herrero v. Atkinson, 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490, 493 (1964); Alisal Sanitary District v. Kennedy, 180 Cal.App.2d 69, 75-79, 4 Cal.Rptr. 379, 382-86 (1960). Deference is due Commercial Standard even though it was decided after the judgment below. See Vandenbark v. Owens Illinois Glass Co., 311 U.S. 538, 541, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944); Nolan v. Transocean Air Line, 365 U.S. 293, 295-96, 81 S.Ct. 555, 5 L.Ed.2d 571 (1961). . Commercial Standard involved imposition of liability for negligence and the court considered the ability of the tortfeasor to obtain insurance against liability arising out of violation of the duty imposed as a factor favoring imposition of liability. This case involves intentional fraud and it is against California public policy, as expressed in California Insurance Code § 533, for a person to insure himself against liability for his willful acts. The uninsurability of willful torts is designed to prevent willful tort-feasors from profiting from their own wrong, see Dart Industries Inc. v. Liberty Mutual Insurance Co., 484 F.2d 1295, 1298 (9th Cir. 1973) (interpreting California Insurance Code § 533), and it would be inconsistent, therefore, to consider the unavailability of insurance as a factor counseling against the imposition of liability on the intentional tortfeasor in the first place. . See In re Williams’ Estate, 36 Cal.2d 289, 292, 223 P.2d 248, 251 (1950); California Code of Civil Procedure Section 1911; A.L.I., Restatement of the Law of Judgments § 68 (1942). . None of the cases cited by the appellees holds that ratification and" }, { "docid": "12458366", "title": "", "text": "here. In the absence of some material change of controlling state law, occurring since the date of our former decision, December 11, 1963, 325 F.2d 673, the directions of our former remand remain the law of this case and would have to be adhered to on the second remand. On the other hand, if there has been a material change in the controlling state law, either by enactment or by clarifying interpretation, we are bound to follow the law as it now exists. Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944); Jones v. Schellenberger, 7 Cir., 1955, 225 F.2d 784, cert. denied, 350 U.S. 989, 76 S.Ct. 476, 100 L.Ed. 855 (1956). After the argument of this appeal we requested the parties to file, and we have received, briefs on the question of whether such a change has, indeed, taken place. There no longer remains any doubt of the power and duty of this Court in proper cases to direct the entry of a judgment n. o. v., Neely v. Martin K. Eby Constro. Co., Inc., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967). We have heretofore referred, at page 100, to the language of the Supreme Court of Florida when it answered our certified question, as follows: “The contention that the wholesomeness of a product should be determined on any standard other than its actual safety for human consumption, when supplied for that purpose * * * [is] one which we are persuaded has no foundation in the decided cases.” We must emphasize the words “actual safety” appearing in the above passage. Then, as already pointed out, page 101 ante, after the second trial below [the trial now under consideration] the Supreme Court of Florida, in McLeod v. W. S. Merrell Co., Div. of Richardson-Merrell, Inc., supra, May 5, 1965, took occasion to explain what it had meant in Green v. American Tobacco Company, Fla., 154 So.2d 169. It said that on the facts of this case" }, { "docid": "2881374", "title": "", "text": "elusive question of what is or is not a “change in the law.” . See, e. g., Blaauw v. Grand Trunk Western R. Co., 380 U.S. 127, 85 S.Ct. 806, 13 L.Ed.2d 792 (1965), vacating and remanding, 333 F.2d 540 (7th Cir. 1964); Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941) (change in state decisional law pending federal controls result in diversity case); United States v. Schooner Peggy, 5 U.S. (1 Crunch) 103, 110, 2 L.Ed. 49 (1801). . Compare Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U. S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) (applying Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) to a 1935 conviction), with Linkletter v. Walker, supra (denying retroactivity to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L. Ed.2d 1081 (1961)). See also Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329 (1940). . The hospital’s contention that its policy of segregation was tolerable under pre-SimJcins decisions is further weakened by its own express agreement not to discriminate on the basis of race, creed or religion in the operation of the new facility. See supra, note 1, and accompanying text. .. Before the decision on its motion for summary judgment, the hospital moved to have the question of back pay determined by a jury. But the claim is not one for damages; it is an integral part of the equitable remedy of reinstatement, and should he determined by the court. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 47, 48, 57 S.Ct. 615, 81 L.Ed. 893 (1937) (No constitutional right to jury trial on back pay incidental to reinstatement) ; Agwilines, Inc. v. NLRB, 87 F.2d 146,151 (5th Cir. 1936)." }, { "docid": "1284887", "title": "", "text": "rule in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, in cases of this kind, we are required to follow the state law upon the subject, regardless of our agreement or disagreement with it. We are not authorized to act as a reviewing court for the purpose of determining whether the ruling of the state court of last resort is sound. West v. American T. & T. Co., 311 U.S. 223, 236-237, 61 S.Ct. 179, 85 L.Ed. 139. The Court of Appeals applies the law as it is at the time the judgment is reviewed, even though the law has been changed since the judgment of the District Court. Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327; Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246. In our opinion, the controlling rule of law of Tennessee, as it presently exists, is as expressed in the case of Moore v. Liberty Mutual Ins. Co., supra, its latest ruling on the question, which draws the distinction between general custody of and limited permission to use the insured automobile, rejecting the earlier rule announced in the Stovall case that liability exists where the original possession of the car was with the permission of the owner, regardless of its unauthorized and unanticipated use thereafter. Dayton & Michigan R. Co. v. C. I. R., 4 Cir., 112 F.2d 627, 630; Yoder v. Nu-Enamel Corp., 8 Cir., 117 F.2d 488, 490. See Moore v. Illi nois Central R. Co., 312 U.S. 630, 634, 61 S.Ct. 754, 85 L.Ed. 1089. Applying that rule to the facts of the present case, it necessarily follows Carr was not an insured under the provisions of the omnibus clause of the policy involved in this suit. He had no general custody of the automobile. He had a limited possession, but certainly no permission to use it for general purposes. In fact, he had no permission of any kind to use the car for his own purposes. His possession was for the purpose of performing work upon" }, { "docid": "12458365", "title": "", "text": "cancer and, therefore, cannot prove the cause. That was not the standard upon which this Court directed that the case should be retried. There was express direction that the cause of death must not be relitigated in the course of settling the question of reasonable safety for use by the general public. In all fairness, we must likewise recognize the equally distressing predicament of the trial judge. At the first blush he was presented with the previously determined fact that deceased had died from the use of a product, and then he was told to preside over the determination of whether such a product nevertheless was reasonably safe for use by the general public. The answer to this dilemma, in our judgment, was that appellee could have rebutted plaintiffs’ proof as to the incidence of lung cancer in cigarette smokers without presenting testimony categorically contradictory to that which had already been found as a fact. For these reasons, this judgment must be reversed and remanded for a new trial. II. The matter does not end here. In the absence of some material change of controlling state law, occurring since the date of our former decision, December 11, 1963, 325 F.2d 673, the directions of our former remand remain the law of this case and would have to be adhered to on the second remand. On the other hand, if there has been a material change in the controlling state law, either by enactment or by clarifying interpretation, we are bound to follow the law as it now exists. Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944); Jones v. Schellenberger, 7 Cir., 1955, 225 F.2d 784, cert. denied, 350 U.S. 989, 76 S.Ct. 476, 100 L.Ed. 855 (1956). After the argument of this appeal we requested the parties to file, and we have received, briefs on the question of whether such a change has, indeed, taken place. There no longer remains any doubt of the power and duty of this Court" }, { "docid": "2630571", "title": "", "text": "It is well settled that on direct review an appellate court must apply the law in effect at the time it renders its decision, United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 109-11, 2 L.Ed. 49 (1801); Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281-82, 89 S.Ct. 518, 525-526, 21 L.Ed.2d 474 (1969), unless doing so would cause manifest injustice, Bradley v. School Board of Richmond, 416 U.S. 696, 716, 94 S.Ct. 2006, 2018, 40 L.Ed.2d 476 (1974). The basis for the rule was first explained by Chief Judge Marshall, and remains the same today: It is, in the general, true, that the province of an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt, in the present case, has been expressed, I know of no court which can contest its obligation. United States v. Schooner Peggy, supra, 5 U.S. at 110, 2 L.Ed. 49. Since a federal court sitting in diversity must apply the governing state law, see Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we must abide by intervening decisions handed down by New York’s highest court. See Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944) (per curiam); 1A J. Moore, Federal Practice ¶ 0.307[3] (2d ed. 1980). The plaintiff argues, however, that “[e]ven though the Court of Appeals had not resolved the consortium issue, there was sufficient basis to object at that time,” and that the hospital’s failure to object to the charge bars appellate review. See Fed. R.Civ.P. 51. We find this contention to be meritless for several reasons. First, the very purpose of Rule 51 is to alert the trial judge to errors in" }, { "docid": "2881373", "title": "", "text": "denied, 376 U.S. 938, 84 S. Ct. 793, 11 D.Ed.2d 659 (1964); Khoury v. Comm. Memorial Hospital, 203 Va. 236, 123 S.E.2d 533, (1962) (same). Cf. Eaton v. Board of Managers of James Walker Memorial Hospital, 261 F.2d 521 (4th Cir. 1958), cert. denied, 359 U.S. 984, 79 S.Ct. 941, 3 L.Ed.2d 934 (1959). . Appellants argue that Bimkins was not a “change” in the law, but simply an application of the principle of Burton v. Wilmington Parking Authority, supra, decided in 1961. After an exhaustive review in Simkins of the role played by state and federal governments in the administration of the Hill-Burton program, we quoted extensively from Burton, and stated that our decision was “controlled” by that case. We also noted that Burton had cast doubt on our earlier holding in Eaton v. Board of Managers of James Walker Memorial Hospital, supra. See also Hampton v. City of Jacksonville, 304 F.2d 320, 323 (5th Cir. 1962). However, since the present ease arises on direct appeal, it is not necessary to wrestle with the elusive question of what is or is not a “change in the law.” . See, e. g., Blaauw v. Grand Trunk Western R. Co., 380 U.S. 127, 85 S.Ct. 806, 13 L.Ed.2d 792 (1965), vacating and remanding, 333 F.2d 540 (7th Cir. 1964); Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941) (change in state decisional law pending federal controls result in diversity case); United States v. Schooner Peggy, 5 U.S. (1 Crunch) 103, 110, 2 L.Ed. 49 (1801). . Compare Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U. S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) (applying Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) to a 1935 conviction), with Linkletter v. Walker, supra (denying retroactivity to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L. Ed.2d 1081 (1961)). See also Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329 (1940). . The" }, { "docid": "17193215", "title": "", "text": "Supreme Court, Alcazar v. Hayes, 982 S.W.2d 845 (Tenn.1998) and American Justice Insurance Reciprocal v. Hutchison, 15 S.W.3d 811 (Tenn.2000), requires a showing of prejudice in order for an insurance company to defeat liability, even if the insured individual has failed to abide by the terms of the policy. In a diversity action involving an insurance contract, a federal, court applies the substantive law of the forum state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Equitable Life Assur. Soc. of U.S. v. Poe, 143 F.3d 1013, 1016 (6th Cir.1998). A federal court must follow the decisions of the state’s highest court when that court has addressed the relevant issue. See Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir.1999). Although the publication of Alcazar and Hutchison occurred after the district court issued judgment granting State Farm’s Rule 50 motion, it is well settled that “a judgment of a federal court ruled by state law and correctly applying that law as authoritatively declared by the state courts when the judgment was rendered, must be reversed on appellate review if in the meantime the state courts have disapproved of their former rulings and adopted different ones.” Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944); accord Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Awrey v. Progressive Cas. Ins. Co., 728 F.2d 352, 354 (6th Cir.1984) (holding that the court of appeals in applying state law on appeal of a diversity action must apply law of the state as it existed at the time of its decision rather than as it stood at the time the case was decided in district court). Thus, an intervening state decision must be given its full effect and treated as though the decision existed during the pendency of the action before the district court. See Huddleston, 322 U.S. at 236, 64 S.Ct. 1015 (holding that until the case is no longer sub judice, federal courts must apply state law in accordance" }, { "docid": "17193216", "title": "", "text": "the state courts when the judgment was rendered, must be reversed on appellate review if in the meantime the state courts have disapproved of their former rulings and adopted different ones.” Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944); accord Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Awrey v. Progressive Cas. Ins. Co., 728 F.2d 352, 354 (6th Cir.1984) (holding that the court of appeals in applying state law on appeal of a diversity action must apply law of the state as it existed at the time of its decision rather than as it stood at the time the case was decided in district court). Thus, an intervening state decision must be given its full effect and treated as though the decision existed during the pendency of the action before the district court. See Huddleston, 322 U.S. at 236, 64 S.Ct. 1015 (holding that until the case is no longer sub judice, federal courts must apply state law in accordance with the then controlling decision of the highest state court). Therefore, we must apply both Alcazar and Hutchison to this case, despite the fact that neither decision was available to the district court at the time it rendered its decision. In Alcazar, the Tennessee Supreme Court considered whether an uninsured motorist policy is automatically forfeited when the insured does not comply with the notice provision of the insurance policy. The supreme court abandoned the traditional approach, which recognized that notice was a condition precedent to recovery under a policy and required automatic forfeiture without a showing of prejudice to the insurer. 982 S.W.2d at 849-52. In adopting the modern approach requiring a showing of prejudice when a condition precedent has been violated, the Alcazar court articulated three rationales governing its ruling on the issue: “1) the adhesive nature of insurance contracts; 2) the public policy objective of compensating tort victims; and 3) the inequity of the insurer receiving a windfall due to a technicality.” Id. at 850. Ultimately, the supreme court concluded that an insurer" }, { "docid": "9573736", "title": "", "text": "and controlling issues were submitted to the California Supreme Court and to the California District Court of Appeal, and the decision of both courts was adverse to appellant’s contentions. As clearly indicated in the reported decision of the California District Court of Appeal, 86 Cal.App.2d 217, 194 P.2d 800, that court gave full consideration to the effect of California and Federal law and to the Federal Constitutional issue presented. With this record before it the Supreme Court of California refused a review of the decision of the District Court ,of Appeal. The interpretation by these .State courts of the meaning and applicability of California statutes, as related to the facts of this case, is not to be disturbed in The absence of a clear and convincing show-dug of a violation of appellant’s rights un.der the Federal Constitution. We are persuaded that such a showing has not been -made in this case. See Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327 and Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1245. In conclusion it is to' be noted that appellant made no attempt to secure from a Jus- - tice of the California Supreme Court or from a Justice of the Supreme Court of the United States a stay of execution of the judgment of the State Courts — this for the purpose of securing allowance of a reasonable time in which to obtain a writ of certiorari from the Supreme Court of the United States. The reason assigned by appellant for this failure is that he was told by the Clerk of the Supreme Court of California that that Court did not usually grant stays and that it would take time to prepare a petition for certiorari. Upon this showing appellant successfully contended in the lower court that his case was one of “peculiar urgency” which gáve that court “jurisdiction” to entertain his petition for a writ of habeas corpus. Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. However, the question of “jurisdiction” was not" }, { "docid": "8902081", "title": "", "text": "is vacated and the case remanded for proceedings consistent with this opinion. . Since this is a diversity case from California, we are bound to follow the substantive law of that state. See 28 U.S.C. § 1652; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In determining that law “[decisions of the California Courts of Appeal are to be followed by a federal court where the Supreme Court of California has not spoken on the question ‘in the absence of convincing evidence that the highest court of the state would decide differently.’ ” Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345, 346 n. 2 (9th Cir. 1974), quoting in part from Stoner v. New York Life Ins. Co., 311 U.S. 464, 467, 61 S.Ct. 336, 85 L.Ed. 284 (1940); West v. American Tel. & Tel. Co., 311 U.S. 223, 236-37, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Six Companies of California v. Joint Highway District, 311 U.S. 180, 188, 61 S.Ct. 186, 85 L.Ed. 114 (1940); Fidelity Union Trust v. Field, 311 U.S. 169, 177-78, 61 S.Ct. 176, 85 L.Ed. 109 (1940). Commercial Standard is not an aberrant ruling; it is in line with state policies expanding the scope of tort liability, see Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968) and favoring the imposition of ultimate liability on the wrongdoers rather than on innocent third parties. See Card Construction Co. v. Ledbetter, 16 Cal.App.3d 472, 478-79, 94 Cal.Rptr. 570, 573-74 (1971); Herrero v. Atkinson, 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490, 493 (1964); Alisal Sanitary District v. Kennedy, 180 Cal.App.2d 69, 75-79, 4 Cal.Rptr. 379, 382-86 (1960). Deference is due Commercial Standard even though it was decided after the judgment below. See Vandenbark v. Owens Illinois Glass Co., 311 U.S. 538, 541, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944); Nolan v. Transocean Air Line, 365 U.S. 293, 295-96, 81 S.Ct. 555, 5 L.Ed.2d 571 (1961). . Commercial Standard involved imposition of liability for" }, { "docid": "14442897", "title": "", "text": "such time as [the] case is no longer sub judice.” Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327 (1941) (emphasis added). As we noted in Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir.1979), “the [Supreme] Court recognized explicitly that the result of this rule would be that ‘[intervening and conflicting [state court] decisions will thus cause the reversal of judgments which were correct when entered.’ ” Id. at 182 (quoting Vandenbark, supra, 311 U.S. at 543, 61 S.Ct. at 350). (The parties agree that Pennsylvania law controls.) Thus, the district court’s reliance on Kaczkowski was entirely proper. . Following the district court’s rulings in Stanton I and Stanton II, supra, Astra petitioned the court to certify the orders for immediate appeal pursuant to 28 U.S.C. § 1292(b) (1976). When the district court denied the motion on November 24, 1981, Astra filed with this Court a Petition for Leave to Appeal, Stanton v. Astra Pharmaceutical Prods., Inc., No. 81-8177 (3d Cir. Dec. 9, 1981). We denied the petition on December 23, 1981. . Rule 238 must be applied in diversity cases by federal courts applying Pennsylvania law. Jarvis v. Johnson, 668 F.2d 740 (3d Cir.1982). . Astra also claimed that the district court had erred in admitting into evidence a videotape entitled “A Day in the Life of Harrikah Stanton”; however, Astra does not appear to have pursued that objection on appeal. . We will not discuss the propriety of the district judge’s remarks to the panel of jurors at the retrial on damages. Inasmuch as we will remand the case for a new trial on both damages and liability, any issues that relate exclusively to the second trial are moot. . Despite the fact that we will remand for a new trial, we must discuss whether the evidence was sufficient to sustain the liability verdict because Astra here appeals from a denial of its motion for judgment n.o.v. on that basis. . The 1938 Act required that all applications be filed with the Secretary of Agriculture, but the Secretary assigned" } ]

[ { "docid": "18730027", "title": "", "text": "rather than federal law is “the source of power and authority for such agreements” under the NLRA. The rationale for finding federal government action in Hanson, then, does not support such a finding here. Most courts have therefore found that Hanson does not compel a finding of state action for an agency shop agreement made under the NLRA or an analogous state statute. See Kolinske v. Lubbers, 712 F.2d 471, 476 (D.C.Cir.1983); Reid v. McDonnell Douglas Corp., 443 F.2d 408, 410 (10 Cir.1971) (“[wjhatever the wisdom of this reasoning for the Railway Labor Act, it has no applicability to the National Labor Relations Act”); Linscott v. Millers Falls Co., 440 F.2d 14 (1 Cir.) (Coffin, J., concurring in judgment), cert. denied, 404 U.S. 872, 92 S.Ct. 77, 30 L.Ed.2d 116 (1971); Price, No. H-84-1221, slip op. at 11 (D.Conn. April 11, 1985); Pasillas v. Agricultural Labor Relations Board, 202 Cal.Rptr. 739 (Cal.App.1. Dist.1984) (following Kolinske and Reid in finding Hanson not to control state action question for state labor law patterned after NLRA). But see Seay v. McDonnell Douglas Corporation, 427 F.2d 996, 1003 (9 Cir.1970) (assuming without discussion that Hanson controls finding of state action in NLRA context); Linscott, supra (majority opinion). The other case asserted to be controlling is Abood. There employees challenged the agency shop clause in a public sector collective bargaining agreement. A state statute patterned on the NLRA authorized such a clause. The Court assumed that this public employment contract involved state action. It upheld the use of agency shop fees to support collective bargaining, but found the use of such fees for political activities unconstitutional. Abood. is distinguishable on the state action issue because it involved the state in the roles of both legislator and employer. See also Kolinske, 712 F.2d at 477 (holding Abood distinguishable). I do not read the statement in Abood that “differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights,” 431 U.S. at 232, 97 S.Ct. at 1798, as meaning that the differences between public- and private-sector bargaining do not translate into" } ]

[ { "docid": "4458487", "title": "", "text": "at the outset that the courts of appeals are divided on the question whether actions taken by a union pursuant to an agency-shop provision in a collective bargaining agreement constitute state action. Compare Price v. UAW, 795 F.2d 1128 (2d Cir.1986) (no state action); Kolinske v. Lubbers, 712 F.2d 471 (D.C.Cir.1983) (same); with Beck v. Communications Workers of Am., 776 F.2d 1187 (4th Cir.1985) (state action); Linscott v. Millers Falls Co., 440 F.2d 14 (1st Cir.1971) (same). The Supreme Court has explicitly left this issue open. See Communications Workers of Am. v. Beck, 487 U.S. 735, 761, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988) (“We need not decide whether the exercise of rights permitted, though not compelled, by § 8(a)(3) [of the National Labor Relations Act] involves state action”)- For essentially the reasons outlined by the District of Columbia and Second Circuits, we agree that state action is not present in these circumstances. We add the following comments addressing the specific arguments that White has advanced. A. To establish that challenged conduct was state action, a plaintiff must demonstrate two things. First, the conduct at issue must either be mandated by the state or must represent the exercise of a state-created right or privilege. Am. Manufacturers Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Second, the party who engaged in the challenged conduct must be a person or entity that can “ ‘fairly be said to be a state actor.’ ” Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)); see also Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir.1999). Because we hold that White has failed to make the second showing required to establish state action, we need not reach the question whether he has made the first. In determining whether a person or entity can be fairly described as a state actor, “it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a" }, { "docid": "10529612", "title": "", "text": "en banc opinion in Beck, the Fourth Circuit also declined to address the state action issue although at least five members of the Court believed that no constitutional basis for relief existed. See Beck, 800 F.2d 1280, 1290 (4th Cir.1986) (en banc) (concurring opinion). Other circuits, however, have found no state action under the NLRA. See, e.g., Price v. International Union, United Auto. Aerospace & Agric. Implement Workers, 927 F.2d 88, 91-92 (2d Cir.1991), petition for cert. filed (June 3, 1991) (No. 90-1855); Kolinske v. Lubbers, 712 F.2d 471, 474-80 (D.C.Cir.1983); Hovan v. Carpenters, 704 F.2d 641, 642-45 (1st Cir.1983). In light of a growing reluctance to find state action under the NLRA, we examine the scope of state action present under the RLA. The coercive effect of the RLA over nonmember employees and its preemption of state law often give rise to state action. See Hanson, 351 U.S. at 232, 76 S.Ct. at 718. But often does not necessarily mean always. Many decisions by a union that has been elected collective bargaining representative, for example, support of a local political candidate or the design for the union’s softball team uniforms, can hardly be considered state action. The mere fact of regulation of some aspects of the union’s duties under the RLA does not give rise to state action. See West v. Atkins, 487 U.S. 42, 52 n. 10, 108 S.Ct. 2250, 2257 n. 10, 101 L.Ed.2d 40 (1988); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). But what of areas in which the union has adopted internal rules to carry out its governmental authority? The RLA does not specifically authorize or require such rules. The RLA only addresses the conduct of the actual collective bargaining representative and addresses the representative almost as if it were a single person. It does not address how an entity chosen as representative should arrange its decisionmaking process so that it acts as a single person. Moreover, the RLA does not specify membership criteria for the collective bargain ing representative. The union actions challenged by Kidwell involve" }, { "docid": "1003627", "title": "", "text": "Id. at 455. That is, it found no evidence of a “close nexus” between the state and the conduct, which could establish state action under Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The Crissmans filed a timely appeal of this decision. A panel of this Court re versed the District Court’s grant of summary judgment for Dover Downs based on its view that the track did have a “symbiotic relationship” with the state of Delaware. Crissman v. Dover Downs Entm’t Inc., 239 F.3d 357, 358 (3d Cir.2001). The panel reasoned that Burton established an exception to the general rule that the state must be involved in the challenged conduct, and that Burton permitted state action to be based on the facts here, namely, facts demonstrating what it termed “overall involvement of the State in the affairs of the private entity.” Id. at 361. This was the first opinion in which we applied Burton to find state action since 1984, and one of only a few to reach that conclusion without a finding that the entity involved was an “instrumentality” of the state. Interestingly, the Supreme Court’s most recent pronouncement in the area of state action does not reference Burton, and the scope of Burton, and its applicability here, presents an important issue. We vacated the panel opinion so that this issue could be considered by the entire Court. IV. The basic question we must ask, and answer, in the state action arena is whether the exclusion of the Crissmans from Dover Downs can be fairly attributed to the state. See, e.g., American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). The Supreme Court has established a number of approaches to this general question, which it has recently said are essentially “facts that can bear on the fairness of such an attribution.” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). Regardless of whether these are “tests” or “facts,” Brentwood directs courts to focus" }, { "docid": "19716674", "title": "", "text": "Agricultural Implement Workers of America, 927 F.2d 88, 92 (2d Cir.) (finding no state action in an NLRA case to implicate Hudson’s, requirements), cert. denied, 502 U.S. 905, 112 S.Ct. 295, 116 L.Ed.2d 240 (1991), with United Food and Commercial Workers Local 951 v. Mulder, 31 F.3d 365 (6th Cir.1994) (assuming that Hudson’s requirements apply in a ease under the NLRA), cert. denied, — U.S. -, 115 S.Ct. 1095, 130 L.Ed.2d 1064 (1995). As the union points out, however, this is not an entirely new question for us; we determined back in 1983 in Kolinske v. Lubbers, 712 F.2d 471 (D.C.Cir.) (holding the denial of strike benefits to nonstriking, nonmembers not unconstitutional) that under the NLRA an agency shop agreement does not amount to state action. We distinguished the Supreme Court’s decisions discerning state action under the Railway Labor Act because that statute not only authorizes agency shops — and therefore puts a federal imprimatur on a collective bargaining agreement forcing an unwilling employee to pay a union an agency fee — it also preempts state law. Id. at 476-77. The NLRA, by contrast, in § 14(b) provides an option by which state law may ban a union shop and override the federal scheme. On reflection, it is not apparent why it is any less “state action,” meaning governmental action, if both the federal and state governments combine (when the state chooses not to ban union shops) to provide a legal regime whereby an employee who refuses to join a union is still obliged to pay an agency fee. Nevertheless, it is not open to us to depart from our prior holding. Still, the Constitution’s applicability to union shop clauses under the NLRA is not determinative as to the union’s obligation to provide Hudson procedures to nonmembers. Subsequent to Kolinske, the Supreme Court decided the crucially important Communications Workers v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988), and although it declined to determine whether the Constitution had the same application to agency shop agreements under the NLRA as it does under the RLA, id. at 761," }, { "docid": "22386301", "title": "", "text": "§ 1983, a plaintiff must aver that a person acting under color of state law deprived him of a constitutional right or a right conferred by a law of the United States. See Dowe v. Total Action Against Poverty, 145 F.3d 653, 658 (4th Cir.1998). “Like the state-action requirement of the Fourteenth Amendment, the under-eolorof-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.’ ” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Consequently, “[t]he person charged must either be a state actor or have a sufficiently close relationship with state actors such that a court would conclude that the non-state actor is engaged in the state’s actions.” DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir.1999). “[Pjrivate activity will generally not be deemed ‘state action’ unless the state has so dominated such activity as to convert it to state action: ‘Mere approval of or acquiescence in the initiatives of a private party’ is insufficient.” Id. at 507; see also Dowe, 145 F.3d at 659. To support his argument, Wahi contends that by reporting him to the NPDB, CAMC “essentially decredentialed” him, a power that is “reserved exclusively to state government” and turns CAMC’s conduct into state action. (Br. Appellant 14,12-15; Reply Br. 21-22.) We previously examined, and rejected, a similar argument in Modaber v. Culpeper Memorial Hospital, Inc., 674 F.2d 1023 (4th Cir.1982). In that case, we held that a hospital’s compliance with a Virginia statute requiring the hospital to report the revocation of privileges did not “authorize state officials to make privileges decisions, or to set forth directions governing the outcome of such decisions, or attach consequences to their results.” Id. at 1027 (footnotes omitted). For these reasons, we held the Virginia statute did not “involve the ‘exercise by a private entity of powers traditionally exclusively reserved to the State.’ ” Id. at 1027 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)); see also Freilich, 313 F.3d at 214 n. 3" }, { "docid": "14313341", "title": "", "text": "(2004) (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)); see also Rendell-Baker, 457 U.S. at 844, 102 S.Ct. 2764 (White, J., concurring) (“[T]he critical factor is ... [whether] the • employment decision was itself based upon some rule of conduct or policy put forth by the State.” (emphasis added)). The Supreme Court has utilized a number of tests for deciding whether a private actor’s conduct can be fairly attributable to the State. See Richard, 355 F.3d at 352 (summarizing tests); Bass v. Parkwood, 180 F.3d 234, 241-43 (5th Cir.1999) (same). The “public function test” examines whether the private entity performs a function which is “exclusively reserved to the State”. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Under the “state compulsion test”, a private actor’s conduct is attributable to the State when it exerts coercive power over the private entity or provides significant encouragement. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 170-71, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The “nexus” or “state action test” considers whether the State has inserted “itself into a position of interdependence with the [private actor, such] that it was a joint participant in the enterprise”. Jackson v. Metro. Edison Co., 419 U.S. 345, 357-58, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). And, under the “joint action test”, private actors will be considered state actors where they are “willful participant[s] in joint action with the State or its agents”. Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). The Supreme Court has not resolved “[w]hether these different tests are actually different in operation or simply different ways of characterizing [this] necessarily fact-bound inquiry....” Lugar, 457 U.S. at 939, 457 U.S. 922. Deciding whether a deprivation of a protected right is fairly attributable to the State “begins by identifying the specific conduct of which the plaintiff complains”. Sullivan, 526 U.S. at" }, { "docid": "14470952", "title": "", "text": "enforced,’ ” Hanson, 351 U.S. at 232, 76 S.Ct. at 718. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed. The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates, though it takes a private agreement to invoke the federal sanction. Id. Because union and agency shop agreements have “the imprimatur of the federal law” upon them, companies and unions entering into such agreements are state actors. Id. The Court focussed on the Railway Labor Act’s express preemption of state laws prohibiting union and agency shops. Id.; 45 U.S.C. § 152, Eleventh (authorizing union security agreements “[njotwithstanding any other provisions of this chapter, or of any other statute or law of the United States, or Territory thereof, or of any State”); Kolinske v. Lubbers, 712 F.2d 471, 475 (D.C.Cir.1983) (noting Hanson Court based its decision largely on the fact the Railway Labor Act preempts state law). The high court continued to treat unions and employers as state actors in Ellis, 466 U.S. at 455-57, 104 S.Ct. at 1895-97, its most recent Railway Labor Act decision involving a private-sector union. We agree with ALPA’s and United’s contention that it is difficult to reconcile Hanson and Ellis with certain other high court decisions regarding state action. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002-12, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-66, 98 S.Ct. 1729, 1737-39, 56 L.Ed.2d 185 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350-59, 95 S.Ct. 449, 453-58, 42 L.Ed.2d 477 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-77, 92 S.Ct. 1965, 1970-74, 32 L.Ed.2d 627 (1972). Even in comparatively clear cut cases, “the question whether particular conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently admits of no easy answer,” Jackson, 419 U.S. at 349-50, 95 S.Ct. at 452-53, and this case is no exception. Nevertheless, we are bound by Hanson and Ellis until and" }, { "docid": "22493544", "title": "", "text": "Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) ; State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) ; Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 63, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ; Payne, supra, at 828, 111 S.Ct. 2597. The doctrine \"is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.\" Agostini, supra, at 235, 117 S.Ct. 1997. And stare decisis applies with perhaps least force of all to decisions that wrongly denied First Amendment rights: \"This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation, if there is one).\" Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 500, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted); see also Citizens United, supra, at 362-365, 130 S.Ct. 876 (overruling Austin, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 ); Barnette, 319 U.S., at 642, 63 S.Ct. 1178 (overruling Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940) ). Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood 's reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision. After analyzing these factors, we conclude that stare decisis does not require us to retain Abood . A An important factor in determining whether a precedent should be overruled is the quality of its reasoning, see Citizens United, 558 U.S., at 363-364, 130 S.Ct. 876 ; id., at 382-385, 130 S.Ct. 876 (ROBERTS, C.J., concurring); Lawrence, 539 U.S., at 577-578, 123 S.Ct. 2472, and as we" }, { "docid": "22147392", "title": "", "text": "opposing that motion. Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996). To state a claim for relief under § 1983, plaintiffs must demonstrate that defendants’ effort to suppress the distribution of St. Maty’s Today was perpetrated under color of state law. 42 U.S.C. § 1983 (2002). The color of law requirement excludes from the reach of § 1983 all “merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (citation and internal punctuation omitted). If the substance of § 1983 is not to be substantially eviscerated, however, “its ambit cannot be a simple line between States and people operating outside formally governmental organizations.” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). Section 1983 therefore includes within its scope apparently private actions which have a “sufficiently close nexus” with the State to be “fairly treated as that of the State itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). “[T]here is no specific formula for defining state action” under this standard. Hicks v. Southern Maryland Health Sys. Agency, 737 F.2d 399, 402 n. 3 (4th Cir.1984) (quoting Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir.1983)). Rather, the question of what is fairly attributable to the State “is a matter of normative judgment, and the criteria lack rigid simplicity.” Brentwood Academy, 531 U.S. at 295, 121 S.Ct. 924. A. We have no doubt that the seizure in this case was perpetrated under color of state law. The requisite nexus between defendants’ public office and their actions during the seizure arose initially out of their censorial motivation. Defendants executed a systematic, carefully-organized plan to suppress the distribution of St. Mary’s Today. And they did so to retaliate against those who questioned their fitness for public office and who challenged many of them in the conduct of their official duties. The defendants’ scheme was thus a classic example of the kind of suppression" }, { "docid": "22493574", "title": "", "text": "In the other hypothetical, employees agitate for a better health plan \"at various inopportune times and places.\" Post, at 2496. Here, the lack of factual detail makes it impossible to evaluate how the Pickering balance would come out. The term \"agitat[ion]\" can encompass a wide range of conduct, as well as speech. Post, at 2496. And the time and place of the agitation would also be important. No First Amendment issue could have properly arisen in those cases unless Congress's enactment of a provision allowing, but not requiring, private parties to enter into union-shop arrangements was sufficient to establish governmental action. That proposition was debatable when Abood was decided, and is even more questionable today. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 53, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) ; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Compare, e.g., White v. Communications Workers of Am., AFL-CIO, Local 1300, 370 F.3d 346, 350 (C.A.3 2004) (no state action), and Kolinske v. Lubbers, 712 F.2d 471, 477-478 (C.A.D.C.1983) (same), with Beck v. Communications Workers of Am., 776 F.2d 1187, 1207 (C.A.4 1985) (state action), and Linscott v. Millers Falls Co., 440 F.2d 14, 16, and n. 2 (C.A.1 1971) (same). We reserved decision on this question in Communications Workers v. Beck, 487 U.S. 735, 761, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988), and do not resolve it here. Contrary to the dissent's claim, see post, at 2497, and n. 4, the fact that \"[t]he rationale of [Abood ] does not withstand careful analysis\" is a reason to overrule it, e.g., Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). And that is even truer when, as here, the defenders of the precedent do not attempt to \"defend [its actual] reasoning.\" Citizens United v. Federal Election Comm'n, 558 U.S. 310, 363, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ; id., at 382-385, 130 S.Ct. 876 (ROBERTS, C.J., concurring). For this reason, it is hardly surprising that chargeability issues have not arisen in many Court" }, { "docid": "22493575", "title": "", "text": "712 F.2d 471, 477-478 (C.A.D.C.1983) (same), with Beck v. Communications Workers of Am., 776 F.2d 1187, 1207 (C.A.4 1985) (state action), and Linscott v. Millers Falls Co., 440 F.2d 14, 16, and n. 2 (C.A.1 1971) (same). We reserved decision on this question in Communications Workers v. Beck, 487 U.S. 735, 761, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988), and do not resolve it here. Contrary to the dissent's claim, see post, at 2497, and n. 4, the fact that \"[t]he rationale of [Abood ] does not withstand careful analysis\" is a reason to overrule it, e.g., Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). And that is even truer when, as here, the defenders of the precedent do not attempt to \"defend [its actual] reasoning.\" Citizens United v. Federal Election Comm'n, 558 U.S. 310, 363, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ; id., at 382-385, 130 S.Ct. 876 (ROBERTS, C.J., concurring). For this reason, it is hardly surprising that chargeability issues have not arisen in many Court of Appeals cases. See post, at 2498 - 2499 (KAGAN, J., dissenting). The dissent emphasizes another type of reliance, namely, that \"[o]ver 20 States have by now enacted statutes authorizing [agency-fee] provisions.\" Post, at 2499. But as we explained in Citizens United, \"[t]his is not a compelling interest for stare decisis . If it were, legislative acts could prevent us from overruling our own precedents, thereby interfering with our duty 'to say what the law is.' \" 558 U.S., at 365, 130 S.Ct. 876 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803) ). Nor does our decision \" 'require an extensive legislative response.' \" Post, at 2499. States can keep their labor-relations systems exactly as they are-only they cannot force nonmembers to subsidize public-sector unions. In this way, these States can follow the model of the federal government and 28 other States. * * * Unfortunately, the dissent sees the need to resort to accusations that we are acting like \"black-robed rulers\" who have shut down an \"energetic policy debate.\" Post," }, { "docid": "22192320", "title": "", "text": "involving arguably semi-public functions, such as providing utility services, see Jackson v. Metropolitan Edison Co., supra, or furnishing remedial education to high school students, see Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Supreme Court has declined to characterize such activities as government functions for purposes of the public function analysis. In the case at bar, the action complained of is the lawful sale and marketing of a legal, albeit federally regulated, consumer product: a private rather than public, and a fortiori not “exclusively” public, function. Even if the activities at issue extended, as Black Smokers suggest, beyond the mere marketing and sale of mentholated tobacco products to the testing and labeling of such products, Black Smokers’ argument would fail because it would not meet the exclusivity requirement under the public function test. Given that many products, including mentholated tobacco, are tested, marketed and labeled by their manufacturers, often in accordance with applicable regulatory requirements, such activities cannot be characterized as the exclusive prerogative of the government. As the District Court noted, it is simply inaccurate to suggest that the testing, labeling and marketing of cigarettes is the exclusive province of the federal government. Finally, Black Smokers’ averment that defendants’ compliance with various federal labeling requirements transforms defendants into government actors is without support in applicable case law. Such propositions have been flatly rejected by the Supreme Court on several occasions; see American Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. 2777; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (holding that the fact that a business is subject to government regulation does not by itself convert the business’s action into that of the government). Black Smokers’ allegations that defendants’ actions satisfy the “close nexus” test under the government action analysis are also unavailing. As with the public function analysis, Black Smokers apparently discern the purported nexus between the private action complained of and the federal government in the operation" }, { "docid": "22493545", "title": "", "text": "in judgment) (internal quotation marks omitted); see also Citizens United, supra, at 362-365, 130 S.Ct. 876 (overruling Austin, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 ); Barnette, 319 U.S., at 642, 63 S.Ct. 1178 (overruling Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940) ). Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood 's reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision. After analyzing these factors, we conclude that stare decisis does not require us to retain Abood . A An important factor in determining whether a precedent should be overruled is the quality of its reasoning, see Citizens United, 558 U.S., at 363-364, 130 S.Ct. 876 ; id., at 382-385, 130 S.Ct. 876 (ROBERTS, C.J., concurring); Lawrence, 539 U.S., at 577-578, 123 S.Ct. 2472, and as we explained in Harris , Abood was poorly reasoned, see 573 U.S., at ---- - ----, 134 S.Ct., at 2632-2634. We will summarize, but not repeat, Harris 's lengthy discussion of the issue. Abood went wrong at the start when it concluded that two prior decisions, Railway Employes v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), and Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), \"appear[ed] to require validation of the agency-shop agreement before [the Court].\" 431 U.S., at 226, 97 S.Ct. 1782. Properly understood, those decisions did no such thing. Both cases involved Congress's \"bare authorization \" of private-sector union shops under the Railway Labor Act. Street, supra, at 749, 81 S.Ct. 1784 (emphasis added). Abood failed to appreciate that a very different First Amendment question arises when a State requires its employees to pay agency fees. See Harris, supra, at ----, 134 S.Ct., at 2632. Moreover, neither Hanson nor Street gave careful consideration to the First Amendment. In Hanson, the primary questions were whether Congress" }, { "docid": "22493543", "title": "", "text": "at 477, 115 S.Ct. 1003 (holding federal-employee honoraria ban unconstitutional). VI For the reasons given above, we conclude that public-sector agency-shop arrangements violate the First Amendment, and Abood erred in concluding otherwise. There remains the question whether stare decisis nonetheless counsels against overruling Abood . It does not. \"Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). We will not overturn a past decision unless there are strong grounds for doing so. United States v. International Business Machines Corp., 517 U.S. 843, 855-856, 116 S.Ct. 1793, 135 L.Ed.2d 124 (1996) ; Citizens United, 558 U.S., at 377, 130 S.Ct. 876 (ROBERTS, C.J., concurring). But as we have often recognized, stare decisis is \" 'not an inexorable command.' \" Pearson v. Callahan, 555 U.S. 223, 233, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; see also Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) ; State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) ; Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 63, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ; Payne, supra, at 828, 111 S.Ct. 2597. The doctrine \"is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.\" Agostini, supra, at 235, 117 S.Ct. 1997. And stare decisis applies with perhaps least force of all to decisions that wrongly denied First Amendment rights: \"This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation, if there is one).\" Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 500, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (Scalia, J., concurring in part and concurring" }, { "docid": "14677617", "title": "", "text": "act as the exclusive bargaining representative of employees without the authorization of the federal labor statutes. See Beck, 776 F.2d at 1207-08. Nevertheless, the naked fact that a private entity is accorded monopoly status is insufficient alone to denominate that entity’s action as government action. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351-52, 95 S.Ct. 449, 453-54, 42 L.Ed.2d 477 (1974); see also Beck, 776 F.2d at 1222 (Winter, J., dissenting). Thus, the first aspect of the Lugar test for government action is not satisfied here where no right or privilege created by the government is the source of the appellants’ alleged deprivation. Moreover, neither the employer nor the union here can be said to be a state actor. Under Lugar, a person may be said to be a state actor “because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” 457 U.S. at 937, 102 S.Ct. at 2753. Unlike the situation in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), where local government employees were subject to an agency shop agreement negotiated by their union and their governmental employer, here no government official was involved. Further, no significant aid from government officials has been demonstrated, nor, as was explained in Kolinske, has the government injected itself in any other way so as to make the conduct here chargeable to the state. See 712 F.2d at 479-80; see also Blum v. Yar-etsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982) (“a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State”). Thus, in enacting the NLRA congress mapped out the background and parameters of possible private action, but required nothing with respect to the particular wrong complained of here. When a private party makes the" }, { "docid": "22493573", "title": "", "text": "hypothetical situations. See post, at 2495 - 2497. Both hypotheticals are short on potentially important details, but in any event, neither would be affected by our decision in this case. Rather, both would simply call for the application of the standard Pickering test. In one of the hypotheticals, teachers \"protest merit pay in the school cafeteria.\" Post, at 2496. If such a case actually arose, it would be important to know, among other things, whether the teachers involved were supposed to be teaching in their classrooms at the time in question and whether the protest occurred in the presence of students during the student lunch period. If both those conditions were met, the teachers would presumably be violating content-neutral rules regarding their duty to teach at specified times and places, and their conduct might well have a disruptive effect on the educational process. Thus, in the dissent's hypothetical, the school's interests might well outweigh those of the teachers, but in this hypothetical case, as in all Pickering cases, the particular facts would be very important. In the other hypothetical, employees agitate for a better health plan \"at various inopportune times and places.\" Post, at 2496. Here, the lack of factual detail makes it impossible to evaluate how the Pickering balance would come out. The term \"agitat[ion]\" can encompass a wide range of conduct, as well as speech. Post, at 2496. And the time and place of the agitation would also be important. No First Amendment issue could have properly arisen in those cases unless Congress's enactment of a provision allowing, but not requiring, private parties to enter into union-shop arrangements was sufficient to establish governmental action. That proposition was debatable when Abood was decided, and is even more questionable today. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 53, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) ; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Compare, e.g., White v. Communications Workers of Am., AFL-CIO, Local 1300, 370 F.3d 346, 350 (C.A.3 2004) (no state action), and Kolinske v. Lubbers," }, { "docid": "20565489", "title": "", "text": "presents an unusual state action question because the regulated party is a separate sovereign rather than a private entity. Despite the rarity of this situation (inasmuch as federal and state govern-mente are generally bound by the same constitutional standards), the analysis proceeds with the same “necessarily fact-bound inquiry,” Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), as if the federal government were regulating the decision of a private entity, with the City standing in the place of a private party. See, e.g., Kitchens v. Bowen, 825 F.2d 1337 (9th Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988). The Supreme Court has held that “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Jackson, 419 U.S. at 350, 95 S.Ct. 449. Furthermore, “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum, 457 U.S. at 1004, 102 S.Ct. 2777. “Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives .... ” Id. at 1004-05, 102 S.Ct. 2777; see also Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 52, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Moose Lodge v. Irvis, 407 U.S. 163, 177, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). The receipt of public funds, even of “virtually all” of an entity’s funding, is not sufficient to fairly attribute the entity’s actions to the government. See Rendell-Baker, 457 U.S. at 840-41, 102 S.Ct. 2764 (citing Blum, 457 U.S. at 1011, 102 S.Ct. 2777). In analyzing whether the alleged burden on religious exercise is fairly attributable to the FAA, we “begin[] by identifying ‘the specific conduct of which the plaintiff complains.’ ” Am. Mfrs. Mut. Ins. Co., 526 U.S. at 51, 119 S.Ct. 977 (quoting Blum," }, { "docid": "23547390", "title": "", "text": "Cir.2004). Id. at 782 (alteration in original). 2. We next consider the principle that, to be held liable under section 1983, a private entity must have acted under color of state law. a. When a plaintiff brings a section 1983 claim against a defendant who is not a government official or employee, the plaintiff must show that the private entity acted under the color of state law. This requirement is an important statutory element because it sets the line of demarcation between those matters that are properly federal and those matters that must be left to the remedies of state tort law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Jackson v. Metro. Edison Co., 419 U.S. 345, 349-51, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Both the Supreme Court and the lower federal courts have acknowledged the difficulty of determining whether a private entity has acted under the color of state law. As our colleagues on the Second Circuit have noted, this determination constitutes “one of the more slippery and troublesome areas of civil rights litigation.” Int’l Soc’y for Krishna Consciousness v. Air Canada, 727 F.2d 253, 255 (2d Cir.1984) (quotation marks omitted). However, we have not been left foundering in uncharted waters; recent years have witnessed a long line of decisions in which the Supreme Court has given us significant guidance. At its most basic level, the state action doctrine requires that a court find such a “close nexus between the State and the challenged action” that the challenged action “may be fairly treated as that of the State itself.” Jackson, 419 U.S. at 351, 95 S.Ct. 449 (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972)). In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Supreme Court wrote that “[t]he ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of" }, { "docid": "4458486", "title": "", "text": "collective bargaining agreements do not constitute state action, see Price v. UAW, 795 F.2d 1128 (2d Cir.1986); Kolinske v. Lubbers, 712 F.2d 471 (D.C.Cir.1983), as well as Supreme Court decisions holding, in other contexts, that “private union conduct does not amount to state action.” App. I at 9 (citing United Steelworkers v. Sadlowski, 457 U.S. 102, 121 n. 16, 102 S.Ct. 2339, 72 L.Ed.2d 707 (1982)) (union rule restricting campaign contributions to candidates for union office); United Steelworkers v. Weber, 443 U.S. 193, 200, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) (affirmative action plan in collective bargaining agreement). Finally, the District Court held that the statute of limitations barred White’s duty-of-fair-representation claim. Wfiiite filed a timely notice of appeal, and we granted his request for appointed counsel. On appeal, White argues that the District Court erred in failing to reach the merits of his First Amendment claim because the CWA’s implementation of the Opt-Out Procedure in fact constitutes state action. White does not contest the denial of his NLRA and duty-of-fair-representation claims. II. We note at the outset that the courts of appeals are divided on the question whether actions taken by a union pursuant to an agency-shop provision in a collective bargaining agreement constitute state action. Compare Price v. UAW, 795 F.2d 1128 (2d Cir.1986) (no state action); Kolinske v. Lubbers, 712 F.2d 471 (D.C.Cir.1983) (same); with Beck v. Communications Workers of Am., 776 F.2d 1187 (4th Cir.1985) (state action); Linscott v. Millers Falls Co., 440 F.2d 14 (1st Cir.1971) (same). The Supreme Court has explicitly left this issue open. See Communications Workers of Am. v. Beck, 487 U.S. 735, 761, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988) (“We need not decide whether the exercise of rights permitted, though not compelled, by § 8(a)(3) [of the National Labor Relations Act] involves state action”)- For essentially the reasons outlined by the District of Columbia and Second Circuits, we agree that state action is not present in these circumstances. We add the following comments addressing the specific arguments that White has advanced. A. To establish that challenged conduct was state action," }, { "docid": "22192321", "title": "", "text": "District Court noted, it is simply inaccurate to suggest that the testing, labeling and marketing of cigarettes is the exclusive province of the federal government. Finally, Black Smokers’ averment that defendants’ compliance with various federal labeling requirements transforms defendants into government actors is without support in applicable case law. Such propositions have been flatly rejected by the Supreme Court on several occasions; see American Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. 2777; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (holding that the fact that a business is subject to government regulation does not by itself convert the business’s action into that of the government). Black Smokers’ allegations that defendants’ actions satisfy the “close nexus” test under the government action analysis are also unavailing. As with the public function analysis, Black Smokers apparently discern the purported nexus between the private action complained of and the federal government in the operation of the Labeling Act. They assert that the Labeling Act encourages tobacco manufacturers to conceal the dangers of mentholated cigarettes, mandates inadequate warnings on such products and preempts most tort actions against defendants. However, because the Labeling Act does not compel, influence or encourage the actions upon which this suit is based — the targeted marketing of menthol cigarettes to African-Americans — but rather only requires the disclosure of certain risks on tobacco product packaging, defendants’ conduct in compliance with the Labeling Act does not create the “close nexus” necessary for a finding of state action. See Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. at 52, 119 S.Ct. 977; Goussis v. Kimball, 813 F.Supp. at 357. Additionally, Black Smokers’ “close nexus” argument is defective to the extent that it does not allege the violation of a federal right, a prerequisite under that analysis. See Goussis v. Kimball, 813 F.Supp. at 357. Black Smokers’ attempt to classify this case under the" } ]

[ { "docid": "23296654", "title": "", "text": "of the trial court is, in our opinion, without merit. Oxley Stave Co. v. Coopers’ International Union of North America, 72 Fed. It is further urged that tlie trial court had no right to proceed with the hearing of the case in the absence of any of the persons who were members of the two voluntary organizations, to wit, the Coopers’ Union, No. 18, and flu* Trades Assembly of Kansas Oiiv, Kan., because all the members of those organizations were parties to (lie alleged conspiracy. This contention seems to be based on the assumption that every member of the two organizations had'the right to call upon every other member for aid and assistance in carrying out tlie alleged conspiracy, and that an injunction restraining a part of the members from rendering such aid and assistance would necessarily operate to lhe prejudice of those members who had not been made parties to the suit. In oilier words, tlie argument is that certain indispensable parties to (he suit have not been made parties, and (hat full relief, consistent with, equity, cannot be administered without. their presence upon the record. We do not dispute the existence of the rule which the defendants invoke, but it is apparent, we think, that it has no application to the case in hand. The present suit proceeds upon the theory — without which no relief can be afforded — that the agreement entered into between the members of the two voluntary associations aforesaid is an unlawful conspiracy to oppress and injure the plaintiff company; that no right whatsoever can be predicated upon, or have its origin in, such an agreement; and that the members of the two organizations are jointly and severally liable for whatever injury would be done to the plaintiff company by carrying out the object of the alleged agreement. The rule is as w;ell settled in equity as it is at law that, where the right of action arises ex delicto, the tort may be treated as joint or several, at the election of the injured party, and that he may, at his option," } ]

[ { "docid": "4148829", "title": "", "text": "not made a sufficient showing of state action at this stage of the litigation, I am mindful that the United States Supreme Court has cautioned that whether particular discriminatory conduct is private or amounts to state action can only be ascertained by sifting facts and weighing circumstances. Burton v. Wilmington Parking Authority, supra, at 722, 81 S.Ct. 856. Whether plaintiff can muster additional facts to support his state action theory remains to be seen. The final determination as to state action need not now be determined. Were plaintiff’s section 1983 cause of action to be dismissed for failure to state a claim upon which relief can be granted, there would be no pendent jurisdiction over his state cause of action. Pendent jurisdiction can be relied upon only when there is a claim conferring federal jurisdiction that will survive a motion to dismiss. United Mine Workers v. Gibbs, 388 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975). In addition to his allegation of pendent jurisdiction, plaintiff has alleged diversity of citizenship jurisdiction over his state claim. Plaintiff seems to have overlooked the fact that there must be complete diversity between himself and defendants to satisfy 28 U.S.C. § 1332(a)(2). Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806), 2 L.Ed. 435. There is a lack of complete diversity in the complaint as presently drafted because plaintiff is an alien and defendants are citizens of various states and another alien. IIT v. Vencap, Ltd., supra, at 1015. It has long been established, however, that a federal court, on plaintiff’s motion, may drop a non-diverse defendant and retain jurisdiction if that party is not indispensable. Horn v. Lockhart, 84 U.S. (17 Wall.) 570, 21 L.Ed. 657 (1873); Kerr v. Compagnie De Ultramar, 250 F.2d 860 (2d Cir. 1958); Karakatsanis v. Conquestador Cia. Nav., S.A., 247 F.Supp. 423 (S.D.N.Y.1965); Planning and Investing Company, S.A. v. Hemlock, 50 F.R.D. 48 (S.D.N.Y.1970). To deny such a motion would be an abuse of discretion. Kerr v. Compagnie De Ultramar, supra, at 864. In the" }, { "docid": "22244151", "title": "", "text": "the parties are correctly joined as joint tortfeasors or as liable in the alternative; the dimensions of the action are no larger than the rules permit. Because, however, of the limitations on federal jurisdiction, such otherwise proper joinder destroys the jurisdiction of the court. Rule 21 was adopted to obviate the harsh common law adherence to the technical rules of joinder, Moore’s Federal Practice § 21.03(2 ed. 1948), and not in order to deal with problems of defective federal jurisdiction. Here the plaintiff is not seeking to drop a party in order to cure defects of mis-joinder or non-joinder. The motion more properly is an amendment of the pleadings under Rule 15(a) which would result in a dismissal of the complaint against Transmar, or it may be based solely on the inherent powers of the court to perfect federal jurisdiction. See Horn v. Lockhart, 1873, 17 Wall. 570, 579, 84 U.S. 570, 579, 21 L.Ed. 657. Regardless of the procedural vehicle for the motion, unless it appears that a non-diverse defendant cannot be dropped from an action without prejudice to the remaining defendants, the motion should be granted and a failure to do so is an abuse of discretion. Although the District Court doubted that Ultramar had been entrapped into appearing generally, it felt that Ultramar might have lost the right to contest jurisdiction over the person and would be prejudiced by its inadvertent waiver of this right. The belief that Ultramar has lost its right to establish lack of jurisdiction over its person by showing that it was not doing business in New York is apparently based on a legal misconception. By Rule 12(b), Federal Rules of Civil Procedure, jurisdiction over the person may be attacked either by motion or by answer. A voluntary general appearance does not constitute a waiver of this defense if it is properly raised in the answer. Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 1944, 139 F.2d 871, certiorari denied Orange Theatre Corp. v. Brandt, 1944, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573; Blank v. Bitker, 7 Cir., 1943, 135" }, { "docid": "21891857", "title": "", "text": "on common law fraud. The claims of the respective parties center about representations and warranties contained in a merger agreement and an indemnity and escrow agreement. The latter agreement provides that Bloomfield and the Kobrin group shall be liable to Liggett & Myers should it suffer any loss or damage as a result of a breach of any of the warranties set forth or any misrepresentations contained in the merger agreement whereby Liggett & Myers acquired Mercury Mills, Inc., of which Bloomfield and the Kobrin group were stockholders as well as the management group. Essentially, Liggett & Myers claims Bloomfield breached those warranties and made misrepresentations. In turn, Bloomfield alleges that the Kobrin group made the same warranties and representations, and if any breach occurred or any misrepresentations were made, they participated therein; it is on this basis that Bloomfield seeks contribution and other relief. The Kobrin group now moves to dismiss Bloomfield’s complaint for failure to state a claim for relief; to stay the trial of the second, third and fourth causes of action (and the first cause of action’s claim for contribution as to common law fraud if it is not dismissed), and to compel arbitration pursuant to a provision contained in the indemnity agreement; further, to stay commencement of the arbitration until the conclusion of the trial between Liggett & Myers and Bloomfield on the ground that if Bloomfield is held not liable there would be nothing to arbitrate. The first branch of the motion is based on the contention that there is no right to contribution from third-party defendants under section 10(b). However, in Globus, Inc. v. Law Research Service, Inc., it was held that contribution may be had by one joint tort-feasor from other joint tort-feasors where all were found jointly and severally liable for violation of section 10(b). Movants would confine Globus to its facts, where codefendants in an action have been adjudicated jointly and severally liable to the plaintiff and the defendant who has paid the judgment seeks contribution from his codefendants —in short, Globus would not be applicable where the third-party defendant" }, { "docid": "11637205", "title": "", "text": "highway by itself or by uniting with connecting waters, by which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water. We are of the opinion that neither the cases finding navigability for the purpose of determining proprietary rights, nor the eases finding navigability past, present or potential for the purpose of supporting regulation by Congress under the Commerce Clause, establish any controlling law for the purpose of determining navigability sufficient to support the exercise of admiralty jurisdiction by this court. While we have come to the conclusion that this action cannot be maintained in this court under the admiralty jurisdiction, the pleadings indicate possible diversity jurisdiction between plaintiffs and defendant Century Boat Company, a foreign corporation alleged to do business in Pennsylvania. A complaint should not be dismissed on the grounds of lack of jurisdiction if it reveals that any grounds for jurisdiction exist between plaintiff and any defendant and is not otherwise subject to objection that the parties dismissed are indispensible parties to the action. “The district court, then, has the power to, and in the exercise of its discretion may, permit parties to be dropped, if they are not indispensible, and thereby perfect jurisdiction.” 3 Moore’s Federal Practice, ¶ 15.09, p. 947, citing Ackererley v. Commercial Credit Co., 111 F. Supp. 92 (D.N.J.1953). Furthermore, where an action has been brought under a federal statute and the statute is inapplicable, plaintiffs may be granted leave to amend to change the whole jurisdictional basis of the suit and convert it into a civil action based on diversity of citizenship. International Ladies’ Garment Workers’ Union v. Donnelly Garment Co., 121 F.2d 561 (8th Cir. 1941). Therefore, we will dismiss the action for lack of admiralty jurisdiction but allow plaintiffs leave to amend to plead diversity jurisdiction against any defendant having diverse citizenship, which, from the records of this case appears to be only defendant Century Boat Company." }, { "docid": "2425565", "title": "", "text": "by Cornell; for a judgment against Cornell and others alleged to have conspired with him to defraud them for the amount determined to be due them; also to impress the whole property of the estate of their mother, the legal title to which has passed out of all the heirs, with a trust in their fa-' vor for their two-ninths interest. Plaintiffs also are suing, solely on their own behalf, for an accounting by Colquitt, receiver, for the money of the estate of their mother he is alleged to have collected and fraudulently failed to account for and which, pursuant to the conspiracy charged, he converted to the use of Cornell; and for judgment against him and the surety on his official bond. The rule as to who are considered indispensable parties in a suit in equity in federal courts has been repeatedly announced by the Supreme Court. In substance, it is this: Where the interests of the parlies before the court are separable from those of the parties omitted, a,nd the court can do justice between the parties before it, without prejudice to the rights of the absentees, jurisdiction will be maintained. It is unnecessary to attempt to review all the oases. As applicable to the issues presented in this case, the following eases, involving analogous issues, illustrate the rule: In Horn v. Lockhart, 17 Wall. 570, 21 L. Ed. 657, the suit was by heirs against an administrator for an accounting. It was held that, as the interests of the heirs were separable, some, whose inclusion would defeat jurisdiction based on diversity of citizenship, were not indispensable parties and could bo dismissed. In Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260, the suit was by one distributee against an administrator of an intestate’s estate and the surety on his bond. It was held that the surety was properly joined, and that other heirs were not indispensable parties, as the court could frame a decree to do justice to the parties before it without prejudice to the rights of the absent parties equally interested. In Waterman v." }, { "docid": "22675105", "title": "", "text": "their rules prescribe.” 1 Stat. 91, formerly codified at 28 U. S. C. §777 (1946 ed.). He cautioned, however, that this amendment power should be used in such a way that “no unfair advantage shall be taken by one party, and no oppression practised by the other.” 1 F. Cas., at 998. While Justice Story’s opinion dealt generally with the amendment power of appellate courts, Chief Justice Marshall’s opinion for this Court in Carneal v. Banks, 10 Wheat. 181 (1825), dealt with the issue at hand — the power of appellate courts to grant motions to dismiss dispensable non- diverse parties. The case involved a suit by plaintiff Banks against two groups of defendants, the heirs of Harvie and the heirs of Carneal. Only the heirs of Carneal had citizenship diverse from the plaintiff. After noting this jurisdictional problem, the Court stated: “The bill... as to Harvie’s heirs, may be dismissed, without in any manner affecting the suit against Carneal’s heirs. That they have been improperly made defendants in his bill, cannot affect the jurisdiction of the Court as between those parties who are properly before it.” Id., at 188. The Court predicated this ruling, in part, on the fact that it was not “indispensable to bring Harvie’s heirs before the Court.” Ibid. Although the Court did not state explicitly whether the Circuit Court in which the case arose had dismissed Harvie’s heirs, a review of the Circuit Court’s opinion in Carneal reveals that the lower court never dismissed the nondiverse parties. Thus, this Court itself dismissed the nondiverse parties while acting in an appellate capacity. By contrast, Horn v. Lockhart, 17 Wall. 570 (1873), clearly involved a trial court’s decision to dismiss dispensable non-diverse parties. In approving such action, however, the Court used language that is strikingly reminiscent of that employed in Carneal: “[T]he question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether . . . they are indispensable parties, for if their interests are severable and a decree without prejudice" }, { "docid": "22244147", "title": "", "text": "in joining the defendants. Consequently, once it appeared that there was less than complete diversity of citizenship, the court was powerless to permit the dismissal of the non-diverse defendant. The court had no jurisdiction, so it is contended, to create jurisdiction retroactively by dismissal of Ultramar. In support of this contention, defendants rely on Johnston v. Oregon Electric Railway Co., D.C.Or.1956, 145 F.Supp. 143; McGrier v. P. Ballantine and Sons, D.C.E.D.N.Y.1942, 44 F.Supp. 762; and Chase v. Lathrope, D.C.E.D.N.Y.1918, 254 F. 713. These cases are the shades of a formalism which we had thought long dead and interred. It has long been established that a federal court, on motion of the plaintiff, may drop a non-diverse defendant and retain jurisdiction if that party is not indispensable. In Horn v. Lockhart, 1873, 17 Wall. 570, 579, 84 U.S. 570, 579, 21 L.Ed. 657, the Court stated: “And the question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether to a decree authorized by the case presented, they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should he retained and the suit dismissed as to them.” The propriety of dismissing a dispensable party to maintain diversity has subsequently been recognized in numerous cases. Indeed, recent cases, taking this principle as well settled, have gone on to deal primarily with ramifications of the problem. In the instant case, liability was predicated on the ownership or charter of the vessel S. S. Zephyr by the defendants or either of them and on their negligence and breach of their warranty of seaworthiness. The complaint can be interpreted as alleging joint liability or as alleging claims in the alternative, the ground on which plaintiff now appears to rely. In either case, Transmar was not an indispensable party. If the facts should establish a joint culpability for negligence, the parties would be jointly and severally liable for the commission of a maritime tort." }, { "docid": "22244146", "title": "", "text": "Plaintiff cross-moved to dismiss Trans-mar and to proceed with the action against Ultramar. By affidavit and in argument Ultramar contended that it had been entrapped into appearing generally and that therefore it would be inequitable to drop Transmar and to allow the action to continue against it when it had lost its right to contest jurisdiction over the person. Judge Murphy, while doubting that Ultramar had been entrapped into appearing voluntarily, indicated that the plaintiff would suffer no inconvenience other than filing another complaint and that Ultramar ought to have the opportunity to contest jurisdiction over the person. Accordingly, he granted the motion to dismiss the action and treated the cross-motion as moot. The defendants seek to support the dismissal below on two grounds. The first ground, not relied upon by the District Court, is that the District Court lacked the power to dismiss the non-diverse defendant and to retain jurisdiction over Ultramar. They argue that the jurisdiction of the federal court, or lack of jurisdiction, was irrevocably determined by the acts of the plaintiff in joining the defendants. Consequently, once it appeared that there was less than complete diversity of citizenship, the court was powerless to permit the dismissal of the non-diverse defendant. The court had no jurisdiction, so it is contended, to create jurisdiction retroactively by dismissal of Ultramar. In support of this contention, defendants rely on Johnston v. Oregon Electric Railway Co., D.C.Or.1956, 145 F.Supp. 143; McGrier v. P. Ballantine and Sons, D.C.E.D.N.Y.1942, 44 F.Supp. 762; and Chase v. Lathrope, D.C.E.D.N.Y.1918, 254 F. 713. These cases are the shades of a formalism which we had thought long dead and interred. It has long been established that a federal court, on motion of the plaintiff, may drop a non-diverse defendant and retain jurisdiction if that party is not indispensable. In Horn v. Lockhart, 1873, 17 Wall. 570, 579, 84 U.S. 570, 579, 21 L.Ed. 657, the Court stated: “And the question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether to" }, { "docid": "22151164", "title": "", "text": "its diversity jurisdiction is well-established, Horn v. Lockhart, 84 U.S. (17 Wall.) 570, 21 L.Ed. 657 (1873); Ralli-Coney, Inc. v. Gates, 528 F.2d 572 (5th Cir. 1976); Kerr v. Compagnie De Ultramar, 250 F.2d 860 (2nd Cir. 1958). As Professor Moore has written, in cases where the presence of an allegedly misjoined party will deprive a court of jurisdiction, “there is a clear federal commitment to allow relation back of amendments dropping parties to uphold subject matter jurisdiction.” Whether a party may be dropped depends on whether the party is “indispensable” to a just and meaningful litigation of the claims remain-mg in the suit. As early as 1873, the Supreme Court instructed: “And the question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of the parties, whether to a decree authorized by the case presented, they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them.” Horn v. Lockhart, 84 U.S. (17 Wall.) at 579. Although the district court’s authority to dismiss non-diverse parties who are not indispensable derives from Fed.R.Civ.P. 21, the primary factors to be considered by the district court in determining whether a party is indispensable are listed in Fed.R.Civ.P. 19, which provides in part: (a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple," }, { "docid": "11041365", "title": "", "text": "may be based solely on the inherent powers of the court to perfect federal jurisdiction. In a case where leave to amend “is sought to eliminate a defendant in order to preserve diversity jurisdiction, ‘unless it appears that a non-diverse defendant cannot be dropped from an action without prejudice to the remaining defendants, the [Rule 15(a) ] motion should be granted and a failure to do so is an abuse of discretion.’ ” Samaha, supra, 757 F.2d at 531 (brackets in Samaha) (quoting Kerr, supra, 250 F.2d at 864). The Second Circuit has further explained that [t]he prejudice that matters is the same as that which determines whether a party is indispensable: “And the question always is or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether, to a decree authorized by the case presented, they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them.” Samaha, supra, 757 F.2d at 531 (quoting Horn v. Lockhart, 84 U.S. (17 Wall.) 570, 579, 21 L.Ed. 657 (1873)); see also Jaser, supra, 815 F.2d at 243-44. Plaintiffs argue that none of the Moving Defendants will suffer prejudice should Comstock be dismissed from this action, and thus Comstock is not an indispensable party. In making this argument, plaintiffs note that “Comstock is no longer a functioning entity because all or substantially all of its assets were forfeited when Com-stock defaulted under its mineral leases in 1986. Although Comstock has not been formally dissolved, it is for all intents and purposes defunct.” Affidavit of Francis R. Jones, Esq., sworn to on June 21, 1991,112. The Moving Defendants, in opposing the motion to drop Comstock, argue that the motion is untimely, and that Comstock is a “necessary” party because the amended complaint alleges wrongdoing by, and seeks damages from, Comstock. Neither of these arguments is persuasive. First, as to the issue of delay, the Moving Defendants" }, { "docid": "23098880", "title": "", "text": "court below grant to the appellees who were plaintiffs in that court (Donnelly Garment Company and Donnelly Garment Sales Company) leave to dismiss this action without prejudice as to defendants who are citizens of Missouri, and to amend the complaint so that it will show diversity of citizenship between the plaintiffs and the remaining defendants and that the action is one of a civil nature in equity where the amount in controversy exceeds $3,000; that we also direct the court below to confine the evidence upon a new trial, after the' complaint has been amended, to the question whether jurisdiction on the ground of diversity of citizenship exists; and that we authorize that court, if it finds the existence of such jurisdiction, to re-enter the decree which has been appealed from, with such modifications as we think should be made. The appellants resist these motions. They challenge the power of the Court to grant the motions and the propriety of their being granted if the Court has the power. They point to the fact that the cause of action was based solely upon a. law of the United States, namely, the Sherman Act. The appellants contend that to, now substitute a cause of action in equity based upon diversity of citizenship would not be an amendment to the cause of action originally asserted, but would 'be equivalent to commencing a new and different action and conferring upon the court below jurisdiction of the persons of nonresident defendants who had appeared voluntarily, without according them any opportunity to question the right of that court to compel them to defend in Missouri against a new cause of action not based upon any law of the United States, but arising under the laws of Missouri! The appellants also contend that to authorize the court below to re-enter the present- decree, which is now more than two years old and which the court was without jurisdiction to enter and which was based upon findings which that court was without jurisdiction to make, would not be justified and would have the effect of depriving some" }, { "docid": "8867192", "title": "", "text": "whom venue had been improperly laid was an indispensable party. In an analogous situation, where the motion to dismiss one of several defendants was granted on the ground that the court would otherwise lack requisite diversity jurisdiction over the action, Judge Ryan concluded that the joint and several liability of all the defendants on the claims pleaded precluded dismissal as to the remaining defendants since joint-tortfeasors are neither necessary nor indispensable parties. Kassner v. United States Pictures, Inc., D.C.S.D.N.Y.1948, 82 F.Supp. 633. And the Court of Appeals for the Second Circuit has concluded that this proposition is so well settled that it would be an abuse of discretion to fail to drop a merely necessary party in order to retain jurisdiction as to the remaining defendants. Kerr v. Compagnie De Ultramar, 2 Cir., 1958, 250 F.2d 860. As Judge Rifkind concluded in Martin v. Chandler, D.C.S.D.N.Y.1949, 85 F.Supp. 131, 132, “It is hornbook law that one tort feasor, defendant in an action, may not claim that another, a joint tort feasor, is an indispensable party.” Moreover, where venue is proper as to one defendant but improper as to one or more co-defendants under § 1391 (a) and (c), and the latter are not indispensable parties, the proper procedure is to drop the non-resident defendant in order to cure the defect in venue. Savoia Films S. A. I. v. Vanguard Films, D.C.S.D.N.Y.1950, 10 F.R.D. 64. The complaint, viewed in its entirety, clearly contains sufficient allegations to establish that all defendants are joint-tortfeasors, since all are named as conspirators in the alleged fraudulent activities of which the complaint speaks. Since they are jointly and severally liable they are not indispensable parties and thus have no standing to obtain dismissal of the complaint under the authorities cited. These facts, together with the well settled judicial interpretation placed on them in this Circuit, amply demonstrate that there is no merit to the defendants’ contention that dismissal as to one or more non-resident defendants requires dismissal as to the remaining defendants. Therefore, the motion to dismiss as to the resident defendant Olsen on the ground" }, { "docid": "22244150", "title": "", "text": "Court had the power to drop Transmar as a party defendant in order to maintain complete diversity of citizenship. Plaintiff, both below and on appeal, has argued that the procedural vehicle for his motion is Rule 21 of the Federal Rules of Civil Procedure, 28 U.S.C. A., citing Weaver v. Marcus, 4 Cir., 1948, 165 F.2d 862, 175 A.L.R. 1305, and Sa- voia Films S. A. I. v. Vanguard Films, D.C.S.D.N.Y.1950, 10 F.R.D. 64. It is questionable whether he should have proceeded under this rule or any of the rules. Rule 21, following the rules dealing with joinder of claims and parties, states: “Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.” Technically there has been no misjoin-der of parties here. From all that appears thus far the parties are correctly joined as joint tortfeasors or as liable in the alternative; the dimensions of the action are no larger than the rules permit. Because, however, of the limitations on federal jurisdiction, such otherwise proper joinder destroys the jurisdiction of the court. Rule 21 was adopted to obviate the harsh common law adherence to the technical rules of joinder, Moore’s Federal Practice § 21.03(2 ed. 1948), and not in order to deal with problems of defective federal jurisdiction. Here the plaintiff is not seeking to drop a party in order to cure defects of mis-joinder or non-joinder. The motion more properly is an amendment of the pleadings under Rule 15(a) which would result in a dismissal of the complaint against Transmar, or it may be based solely on the inherent powers of the court to perfect federal jurisdiction. See Horn v. Lockhart, 1873, 17 Wall. 570, 579, 84 U.S. 570, 579, 21 L.Ed. 657. Regardless of the procedural vehicle for the motion, unless it appears that a non-diverse defendant cannot be dropped from" }, { "docid": "437835", "title": "", "text": "can preserve the integrity of its own order granting summary judgment for Tampax on plaintiffs’ claims. In our disposition of this appeal, we rely on such cases as Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1286, 47 L.Ed.2d 483 (1976); Horn v. Lockhart, 84 U.S. (17 Wall.) 570, 21 L.Ed. 657 (1873); Miller v. Leavenworth-Jefferson Elec. Coop., 653 F.2d 1378 (10th Cir.1981); and Jett v. Phillips & Associates, 439 F.2d 987 (10th Cir.1971). In Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246, the Supreme Court stated that there is an “unflagging obligation of the federal courts to exercise the jurisdiction given them.” And in Horn, 84 U.S. at 579, the Supreme Court spoke as follows: The objection to the jurisdiction of the court, that two of the defendants were residents of Texas, the same State with the complainants, was met and obviated by the dismissal of the suit as to them. They were not indispensable parties, that is, their interests were not so interwoven and bound up with those of the complainants, or other parties, that no decree could be made without necessarily affecting them. And it was only the presence of parties thus situated which was essential to the jurisdiction of the court. The rights of the parties, other than the defendants who were citizens of Texas, could be, and were, adequately and fully determined without prejudice to the interests of those defendants. And the question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether to a decree authorized by the case presented, they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them. In Miller, 653 F.2d at 1382, where the district court dropped a non-diverse plaintiff after judgment, this court spoke as follows: “Courts frequently employ Rule 21 to preserve diversity jurisdiction over a case by dropping" }, { "docid": "22365036", "title": "", "text": "... they are indispensable parties, for if their interests are sev-erable and a decree without prejudice to their rights may be made, the jurisdiction of the court should be retained and the suit dismissed as to them.” Horn v. Lockhart, 17 Wall. 570, 579 (1873). Federal Rule of Civil Procedure 21 provides that “[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” By now, “it is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 832 (1989). Indeed, the Court held in Newman-Green that courts of appeals also have the authority to cure a jurisdictional defect by dismissing a dispensable nondiverse party. Id., at 837. Caterpillar involved an unremarkable application of this established exception. Complete diversity had been lacking at the time of removal to federal court, because one of the plaintiffs shared Kentucky citizenship with one of the defendants. Almost three years after the District Court denied a motion to remand, but before trial, the diversity-destroying defendant settled out of the case and was dismissed. The case proceeded to a 6-day jury trial, resulting in judgment for the defendant, Caterpillar, against Lewis. This Court unanimously held that the lack of complete diversity at the time of removal did not require dismissal of the case. The sum of Caterpillar’s jurisdictional analysis was an approving acknowledgment of Lewis’s admission that there was “complete diversity, and therefore federal subject-matter jurisdiction, at the time of trial and judgment.” 519 U. S., at 73. The failure to explain why this solved the problem was not an oversight, because there was nothing novel to explain. The postsettlement dismissal of the diversity-destroying defendant cured the jurisdictional defect just as the dismissal of the diversity-destroying party had done in Newman-Green. In both cases, the less-than-complete diversity which had subsisted throughout the action had been converted" }, { "docid": "12834103", "title": "", "text": "to dismiss the three Alabama citizens, and the fact that it assigned a wrong reason for so doing seems to me immaterial. A careful reading of Horn v. Lockhart, 17 Wall. 570, 84 U.S. 570, 21 L.Ed. 657, will show that the unnecessary and dispensable parties were dismissed by the trial court, just as in the present case, and that jurisdiction was unimpaired. See 84 U.S. 574, 575, 579. Mr. Justice Field stated: “And the question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether to a decree authorized by the case presented, they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them.” Likewise in Vattier v. Hinde, 7 Pet. 252, 263, 32 U.S. 252, 262, 8 L.Ed. 675, Chief Justice Marshall said: “If, then, when this cause came on for hearing, Abraham Garrison had still been a defendant, a decree might then have been pronounced for or against the other defendants, and the bill have been dismissed as to him, if such decree could have been pronounced as to them, without affecting his interests. We perceive no principle of reason or law which opposes this course. The incapacity of the court to exercise jurisdiction over Garrison, could not affect their jurisdiction over other defendants whose interests were not connected with his, and from whom he was separated, by dismissing the bill as to him.” See, also, Horsford v. Gudger, C.C.W.D.N.C., 35 F. 388, 392. The situation seems to me simply that a complaint filed in the federal district court named one defendant over whom the court had jurisdiction and three defendants with separable interests over whom the court had no jurisdiction. The improper joinder of those three defendants did not deprive the court of jurisdiction over the one. The three defendants improperly joined were properly stricken, and it is immaterial that they were dismissed professedly on" }, { "docid": "20657915", "title": "", "text": "the litigation. C. Jurisdiction and Dismissal of Dispensable Parties Even if we held, like the District Court, that the fifth minor child was an indispensable party who defeated complete diversity, this federal suit involved additional parties who were entirely diverse when the federal proceedings began. Instead of dismissing the entire case, including Cason and Benavides’s personal actions, the District Court had yet another alternative to preserve its jurisdiction. The time-of-filing rule is used to determine whether diversity jurisdiction exists. Like most general principles, this rule is susceptible to some exceptions. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). One applicable excep-. tion is found in Fed.R.Civ.P. 21. “[I]t is well settled that Rule 21 invests district courts with authority to allow a dispensable non-diverse party to be dropped at any time, even after judgment has been rendered” and this is done by order of the court on motion of any party or of [the court’s] own initiative ... on such terms as are just. Id. at 832-33, 109 S.Ct. 2218. Dismissal of a nondiverse dispensable party has long been recognized as a way to cure a jurisdictional defect and Rule 21 explicitly vests district courts with authority to allow a dispensable non-diverse party to be dropped at any time. See id. at 832-38, 109 S.Ct. 2218 (noting that Rule 21 authorizes courts to dismiss non-diverse defendants to cure jurisdictional defects, instead of dismissing the entire case); see also Caterpillar v. Lewis, 519 U.S. 61, 76-77, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (same). [T]he question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether ... they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them. Horn v. Lockhart, 84 U.S. 570, 579, 17 Wall. 570, 21 L.Ed. 657 (1873). When the change in parties does not “affect the course" }, { "docid": "15773036", "title": "", "text": "is, therefore, obviated. The law of North Carolina, by statute and court decision, holds partners jointly and severally liable in contract and in tort actions. The law of New York, however, provides for joint and several liability only where an action is based on tort or breach of trust. In all other cases, including contractual actions, liability is joint. This present action includes a claim for breach of contract, as well as a claim in tort, and liability under New York laws is therefore joint as well as joint and several. It is well established that parties who are jointly and severally liable are not indispensable parties under Rule 19, Fed.R.Civ.P. Such parties are classified as proper parties who may be joined, but who have no substantive right to compel joinder. Although a partner, under New York law, is jointly liable for a contractual obligation of the partnership, the action can be continued without joining him if he cannot be “served with the summons.” Those served can insist on joinder of the other partners if in personam jurisdiction can be obtained, but if it cannot, the action can continue without them. Thus, applying either North Carolina or New York law, the partners are not indispensable since the action can continue without their joinder. In the case of joint liability, they are necessary parties since they can insist on joinder if it is possible, whereas in the case of joint and several liability they are merely proper parties because they cannot compel joinder even if it is feasible. The partners, plaintiff fails to join as defendants, are not, therefore, indispensable parties under either North Carolina or New York law, and defendants’ motion to dismiss on this ground is denied. We turn now to consider defendants’ motion to dismiss on the ground of lack of diversity. Defendants argue that plaintiff is incorporated in New York and has its principal place of business in North Carolina and, therefore, for diversity purposes is a citizen of both New York and North Carolina. Defendants contend that the entity of a partnership acquires the citizenship of" }, { "docid": "13925823", "title": "", "text": "21 of the individual California defendants had no retroactive effect upon the jurisdiction of the present corporate defendants. If this position is correct, all claims would be barred, regardless of which period of limitations would be applicable, since the attachment of federal jurisdiction on March 24, 1950, would not have occurred soon enough as to constitute a commencement of an action within two years of the dates of injury and of death, February 28, 1948, and March 9, 1948, respectively. In the light of the decisions, the position of the defendants cannot be sustained. “The question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether to a decree authorized by the case presented, they are indispenable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them.” Horn v. Lockhart, 17 Wall. 570, 84 U.S. 570, 21 L.Ed. 657. The same principle is announced in Mason v. Dullagham, 7 Cir., 82 F. 689; Delaware, L. and W. R. Co. v. Frank, C.C., 110 F. 689; Interstate Refineries v. Barry, 8 Cir., 7 F.2d 548; Anglo-California National Bank of San Francisco v. Lazard, 9 Cir., 106 F.2d 693. Where, due to the joinder of proper, though not indispensable parties, the requisite diversity of citizenship as to give jurisdiction does not exist, the District Court may permit the dismissal of such parties and thereby establish jurisdiction with retroactive effect Dollar S. S. Lines Inc., v. Merz, 9 Cir., 68 F.2d 594; Gate-way Inc., v. Hillgren, D.C., 82 F. Supp. 546; States v. John F. Daly, Inc., D. C., 96 F.Supp. 479. In support of their position, the defendants advance the proposition that the jurisdiction of the United States District Court when it is founded upon the diversity of citizenship, is determined as of the time of commencement of the suit and it is not to be affected by a subsequent change of parties." }, { "docid": "23184399", "title": "", "text": "Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47. If one of the defendants is an indispensable party to the action, and his joinder in the suit destroys diversity of citizenship-, he must nevertheless be joined as a party with the resulting loss of jurisdiction by the trial court. Baltimore & Ohio R. v. Parkersburg, 268 U.S. 35, 45 S.Ct. 382, 69 L.Ed. 834. Even where a defendant, being a citizen of the same state of which one of the plaintiffs is also a citizen, is not an indispensable party, but nevertheless a proper party, his joinder as a defendant by the plaintiff destroys the necessary diversity of citizenship. Although this defect can be remedied in the trial court by permitting the action to be dismissed as to such defendant, such action can not be taken in the Appellate Court, where the case is controlled by the record made during the trial. Levering & Garrigues Co. v. Morrin, 2 Cir., 61 F.2d 115; Dollar S. S. Lines v. Merz, 9 Cir., 68 F.2d 594; International Ladies Garment Workers Union v. Donnelly Garment Co., 8 Cir., 121 F.2d 561; Alderman v. Elgin, J. E. R. Co., 7 Cir., 125 F.2d 971. See also Continental Insurance Co. v. Rhoads, 119 U.S. 237, 7 S.Ct. 193, 30 L.Ed. 380; Halsted v. Buster, 119 U.S. 341, 7 S.Ct. 276, 30 L.Ed. 462. Although this rule does not apply when such a defendant is merely a nominal or formal party, in which cases his joinder may be disregarded, yet in the present case Grant was at least a proper party to the action, regardless of whether or not he was an indispensable party. His joinder as a defendant and the failure to at any time dismiss the action as to him destroys the diversity of citizenship necessary to give the District Court jurisdiction. Considering, however, the other grounds of the motion, a preliminary question arises with respect to how many of the nine directors are before the court in this action. Appellant claims that four of them, namely, Gracely, Strelitz, Rubenstein and Montrose, are" } ]

[ { "docid": "22671323", "title": "", "text": "(1981), the Supreme Court explored the boundaries of “extreme hardship”: The crucial question in this case is what constitutes ‘extreme hardship.’ These words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute. Id. at 144, 101 S.Ct. 1027; see also Carnalla-Munoz v. INS, 627 F.2d 1004, 1006 (9th Cir.1980) (“Extreme hardship is by the express terms of the statute a discretionary determination.”). We join the Eleventh Circuit in acknowledging our limited jurisdiction with respect to the review of cancellation of removal proceedings. We lack jurisdiction to review the BIA’s discretionary determination that an alien failed to satisfy the “exceptional and extremely unusual hardship” requirement for cancellation of removal. The petition is DISMISSED. . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (''IIRIRA”) provides two forms of cancellation of removal: cancellation for aliens who are legal permanent residents, and cancellation for aliens who are not. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 n. 2 (9th Cir.2002). Because Romero is not a legal permanent resident alien, he is not eligible for relief under § 1229b(a) and must therefore satisfy the more stringent statutory requirements set forth in § 1229b(b). Id. at 1140. . As in Montero-Martinez, 277 F.3d at 1140 n. 1, this appeal presents the question of \"whether we can review decisions regarding discretionary relief by the Attorney General and his designees, which include! 1. inter alia, the IJ, the BIA, INS District Directors, and INS Regional Commissioners.” Because appellate courts usually review BIA decisions, we use the term BIA as \"shorthand for the Attorney General and his designees.” Id. . IIRIRA’s cancellation of removal provisions apply to immigration proceedings initiated after April 1, 1997. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). IIRIRA's transitional rules, adopting the suspension of deportation standard from pre-IIRIRA law, apply to cases that" } ]

[ { "docid": "22623524", "title": "", "text": "possible validity.” Id. (internal quotation marks omitted); see Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001) (“[A] petitioner may not create the jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb ... To determine whether we have jurisdiction over claims labeled as due process violations, we must look beyond the label.”); see also Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.2008) (applying the colorableness requirement to questions of law raised in a petition for review). A petition for review that fails to present such a colorable claim “is nothing more than an argument that the IJ abused his discretion” in determining that the petitioner “did not’ meet the requirement of ‘exceptional and extremely unusual hardship,’ ” which is “a matter over which we have no jurisdiction.” Martinez-Rosas, 424 F.3d at 930. Because the petitioner bears the burden of raising a colorable constitutional claim or question of law, see id., it necessarily follows that we must presume that we lack jurisdiction absent such a showing. B The petitioners concede that we do not have jurisdiction to reweigh the evidence underlying the IJ’s conclusion that removal would not cause their children to suffer an “exceptional and extremely unusual hardship.” They contend, however, that their petition for review does not directly attack the merits of the IJ’s hardship determination, but that it instead presents the question of law that the IJ’s decision failed to apply the correct legal standard governing a hardship determination. The petitioners also contend that the IJ’s decision was factually inconsistent with prior agency precedent concerning a qualifying relative’s special educational needs. 1 We have held that whether an IJ failed to apply a controlling standard governing a discretionary determination is a question over which we have jurisdiction under § 1252(a)(2)(D). See Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006) (holding that, “[wjhile we cannot reweigh evidence” underlying a discretionary determination, “we can determine whether the BIA applied the correct legal standard in making its determination”), overruled on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n." }, { "docid": "15202211", "title": "", "text": "the allegations against him, conceded inadmissibility, and requested a voluntary departure. The IJ reset the merits hearing date to November 18, 2005, to permit Garcia-Aguillon and his counsel to review his immigration record (Form 1-213) in preparation for the hearing. At the merits hearing, the government did not contest that Garcia-Aguillon was statutorily eligible for voluntary departure, but the IJ denied Garcia-Aguil-lon’s request as a matter of discretion and ordered his removal to Mexico, finding that his repeated illegal entries evinced “absolutely no respect for the immigration laws of the United States.” II. Although we generally have jurisdiction to review final orders of removal, 8 U.S.C. § 1252, we lack jurisdiction to review the discretionary denial of voluntary departure under 8 U.S.C. § 1229c. 8 U.S.C. § 1252(a)(2)(B)®. Thus, we must dismiss Garcia-Aguillon’s petition for lack of jurisdiction unless a colorable constitutional claim or question of law is raised therein, keeping in mind that a petitioner may not create jurisdiction by “ ‘cloaking an abuse of discretion argument in constitutional [or legal] garb.’ ” Sabhari v. Mu kasey, 522 F.3d 842, 844 (8th Cir.2008) (per curiam) (quoting Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001)); 8 U.S.C. § 1252(a)(2)(D); see also Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 n. 6 (2d Cir.2008). To be colorable, a claim must have “ ‘some possible validity.’ ” Sabhari, at 844 (quoting Torres-Aguilar, 246 F.3d at 1271); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n. 10, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (“A claim invoking federal-question jurisdiction ... may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous.” (internal quotations omitted)); Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1578-80 (Fed.Cir.1991) (listing various formulations of frivolous appellate claims). In his petition for review, Garcia-Aguil-lon argues that the IJ incorrectly applied the statutory standards in denying his request for voluntary departure and that his due process rights were violated because he lacked notice at the" }, { "docid": "22664590", "title": "", "text": "this requirement. She does not contend that she was prevented from presenting her case before the IJ, denied a full and fair hearing before an impartial adjudicator, or otherwise denied a basic due process right. Rather, she contends that the IJ erred in finding that she did not meet the requirement of “exceptional and extremely unusual hardship.” Such an assertion is nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction. See 8 U.S.C. § 1252(a)(2)(B)®. Therefore, we dismiss this claim. See Torres-Aguilar, 246 F.3d at 1271. Martinez-Rosas also argues that the BIA denied her right to due process by summarily affirming the IJ’s decision pursuant to 8 C.F.R. § 1003.1(d)(2)®. In Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.2003), we held that the BIA does not deny a petitioner’s right to due process by summarily affirming an IJ’s decision that he does not meet the statutory requirements for cancellation of removal, including the requirement that a qualifying United States citizen or lawfully admitted alien relative would suffer “exceptional and extremely unusual hardship” if the petitioner were removed. Id. at 848. Therefore, Martinez-Rosas’ claim that the BIA denied her right to due process lacks merit. V. In summary, habeas appeals challenging final removal orders that were pending on the date the REAL ID Act of 2005 became effective shall be treated as petitions for review. Although we have jurisdiction to review constitutional claims and questions of law presented in petitions for review of final removal orders, we lack jurisdiction to review the subjective, discretionary determination that an alien failed to satisfy the “exceptional and extremely unusual hardship” requirement for cancellation of removal. Furthermore, traditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction. Finally, our bold- ing in Falcon Carricke forecloses Martinez-Rosas’ challenge to the summary af-firmance procedure adopted by the BIA. Therefore, we dismiss the petition in part and deny the petition in part. PETITION DISMISSED IN PART AND DENIED IN PART." }, { "docid": "22132582", "title": "", "text": "U.S. at 252, 130 S.Ct. 827 (quoting Catholic Soc. Servs., 509 U.S. at 63, 113 S.Ct. 2485), and particularly important where legal and constitutional questions are at issue. For example, IIRIRA stripped courts of jurisdiction to review most discretionary decisions or actions of the Attorney General and Secretary of Homeland Security, the authority for which was specified under a particular statutory subchapter. See 8 U.S.C. § 1252(a)(2)(B)(ii). The REAL ID Act of 2005 clarified, however, that courts were not precluded from reviewing “constitutional claims or questions of law raised upon a petition for review.” ' Id. § 1252(a)(2)(D). The recognition in § 1252(a)(2)(D) that legal or constitutional issues are reviewable even when the statute makes the underlying decision discretionary is reflective of a general recognition that there is no preclusion of- such review if otherwise ordinarily available. Indeed, our court held that we retained jurisdiction over legal and constitutional questions raised regarding BIA discretionary decisions even before Congress so stated in the REAL ID Act, further confirming the strength of the presumption of review-ability. See, e.g., Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003) (explaining that IIRIRA did not eliminate our jurisdiction over purely legal questions) (citing Molino-Estrada v. INS, 293 F.3d 1089, 1093-94 (9th Cir. 2002); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002)); Torres-Aguilar v. INS, 246 F.3d 1267, 1270-71 (9th Cir. 2001)- (holding that we had jurisdiction to review a BIA decision for the denial of due process). Our recent decision in Singh v. Holder, 771 F.3d 647 (9th Cir. 2014), confirms that we may review denials of' sua sponte reopening where, unlike in Ekimian and similar cases, there is “law to apply” in doing so. Singh argued in his petition for review that the Board abused its discretion when it erroneously concluded that it lacked authority under 8 C.F.R. § 1003.2(a) to reopen his exclusion proceedings so that he could pursue an adjustment of status application. Singh, 771 F.3d at 650. We concluded that “Ekimian [did] not preclude our jurisdiction.” Id. The jurisdictional bar announced in Ekimian, we explained, “rests on the" }, { "docid": "19920819", "title": "", "text": "ORDER On July 3, 2006, we dismissed this petition for review for lack of jurisdiction. Since that time, petitioners have filed three motions for reconsideration of our July 3, 2006 order. Because petitioners have not identified any points of law or fact overlooked by the court, these motions are denied. See 9th Cir. R. 27-10. Section 242(a)(2)(B)® of the Immigration and Naturalization Act expressly eliminates our jurisdiction over decisions by the Board of Immigration Appeals that involve the exercise of discretion. See 8 U.S.C. § 1252(a)(2)(B)®. We lack jurisdiction to review the Immigration Judge’s discretionary determination that Cornelio Arcos Memije and Maria Del Rosario Ren-den Velez failed to establish the requisite exceptional and extremely unusual hardship to their United States citizen children, and are therefore ineligible for cancellation of removal. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005); Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003). For the same reasons, we lack jurisdiction to decide the issues raised in Judge Pregerson’s dissent. While we empathize with Judge Pregerson’s heartfelt sentiments, Congress has delegated to the Attorney General the discretion to consider them and it has restricted our power to overturn them. See 8 U.S.C. § 1252(a)(2)(B)®. As our colleague, Judge Farris, so eloquently put it in another immigration case, “My brother and I differ on what is the appropriate appellate function. He would retry. I am content to review.” Li v. Ashcroft, 378 F.3d 959, 964 n. 1 (9th Cir.2004). No motions for reconsideration, rehearing, clarification, stay of the mandate, or any other submissions shall be filed or entertained in this closed docket. PREGERSON, Circuit Judge, dissenting: I dissent. The decision in this case, if carried out, will inflict egregious harm on four children born in the United States. Our government’s refusal to grant the children’s undocumented parents cancellation of removal tramples on the children’s substantive due process rights — rights our government routinely ignores. By denying undocumented parents cancellation of removal, our government effectively deports their United States citizen children and denies those children their birthrights. See Cerrillo-Perez v. INS, 809 F.2d 1419, 1426-27 (9th Cir.1987)." }, { "docid": "23358352", "title": "", "text": "restored appellate jurisdiction over questions of law in denials of discretionary relief, including voluntary departure under § 1229c, we have jurisdiction to consider Corro’s petition. See 8 U.S.C. § 1252(a)(2)(D). In Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir.2011), we considered whether § 1252(a)(2)(B)® removed our jurisdiction to review a denial of voluntary departure. The IJ denied the petition on two alternate grounds — a nondiscretionary finding of statutory ineligibility and denial “as a matter of discretion because of [petitioner’s] firearm conviction.” Id. Because review was “limited to the ground adopted by the BIA,” and “because the BIA affirmed based on the IJ’s discretionary denial,” we did not have jurisdiction to review the denial of voluntary departure. Id. (citing § 1252(a)(2)(B)®); see also Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002) (concluding that § 1252(a)(2)(B)® “eliminates jurisdiction only over decisions by the BIA that involve the exercise of discretion”). In contrast, here the BIA’s denial of relief was not based on discretion but on a question of law — the determination that Corro was not statutorily eligible for voluntary departure based on a legal interpretation of “physically present” under § 1229c(b). Before the Real ID Act of 2005, § 1229c(f) barred judicial review of denials of voluntary departure based on both discretionary rulings and statutory ineligibility. See Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir.2004). After passage of the Real ID Act, we addressed a similar statute, 8 U.S.C. § 1158(a)(3), that prohibited review of any determination relating to the one-year bar for asylum claims. Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th Cir.2007). We concluded that “Section 106 of the Real ID Act of 2005 restores our jurisdiction over ‘constitutional claims or questions of law.’ ” Id. at 650 (citation omitted). We now confirm, as we previously held in Gil, 651 F.3d at 1003, that the Real ID Act also restores appellate jurisdiction over constitutional claims or questions of law in challenges to denials of voluntary departure under § 1229c. Other circuits are in accord with this holding. See, e.g., Serrato-Soto v. Holder, 570 F.3d 686," }, { "docid": "22664588", "title": "", "text": "claim of “exceptional and extremely unusual hardship.” See Romero-Torres v. Ashcroft, 327 F.3d 887, 888(9th Cir.2003). We held that whether an alien demonstrated “exceptional and extremely unusual hardship” under 8 U.S.C. § 1229b(b)(1)(D) was a discretionary determination and was therefore unreviewable under 8 U.S.C. § 1252(a)(2)(B)®. See id. at 890-91. The REAL ID Act of 2005 did not alter our jurisdiction in this regard. Section 106(a)(l)(A)(iii) of the Act provides: Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. REAL ID Act of 2005, Pub.L. No. 109-13, Div. B„ § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005). “By this amendment, Congress restored judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders.” See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005). However, 8 U.S.C. § 1252(a)(2)(B)(i) continues to provide that “[notwithstanding any other provision of law ... no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229b [the cancellation of removal provision].” 8 U.S.C. § 1252(a)(2)(B)(i). Therefore, we lack jurisdiction to review the IJ’s subjective, discretionary determination that Martinez-Rosas did not demonstrate “exceptional and extremely unusual hardship” under 8 U.S.C. § 1229b(b)(l)(D). IV. We do have jurisdiction, however, to review Martinez-Rosas’ due process claims. See Fernandez-Ruiz, 410 F.3d at 587. We review such constitutional claims de novo. Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001). Although we retain jurisdiction to review due process challenges, a petitioner must allege at least a colorable constitutional violation. Id. “To be colorable in this context, the alleged violation need not be substantial, but the claim must have some possible validity.” Id. (citations and quotations omitted). MartinezARosas’ claim that the IJ denied her right to due process by misapplying the facts of her case to the applicable law does not meet" }, { "docid": "22919200", "title": "", "text": "removal, the IJ denied her application for cancellation of removal after finding that Salvador-Calleros failed to establish extreme and unusual hardship to a qualifying relative. However, the IJ granted her a period of voluntary departure in lieu of removal. Salvador-Calleros filed a timely appeal to the BIA. In its May 16, 2002 order, the BIA summarily affirmed the IJ’s decision without opinion and renewed in its order Salvador-Calleros’ voluntary departure period for thirty days. The thirtieth calen dar day of Salvador-Calleros’ voluntary departure period fell on June 15, 2002, a Saturday. Salvador-Calleros timely filed both her petition for review and motion for a stay of removal on Monday, June 17, 2002, and this court granted Salvador-Calleros a temporary stay of removal. On July 23, 2002, the government filed a notice of non-opposition to Salvador-Calleros’ motion to stay removal, and on August 22, 2002, pursuant to General Order 6.4(c), we extended Salvador-Calleros’ stay of removal pending review. Because the thirtieth calendar day of the voluntary departure period granted by the BIA fell on a Saturday while the timely motion for stay of removal was filed on the following Monday, we ordered supplemental briefing on the issue of whether a timely stay of voluntary departure was encompassed within the stay of removal. II. Jurisdiction IIRIRA limits this court’s jurisdiction to review certain final orders of the BIA. While we retain jurisdiction to review “purely legal and hence non-discretionary question[s],” Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002), “[bjecause the BIA ... is vested with the discretion to determine whether an alien has demonstrated the requisite hardship, we are without jurisdiction to review the BIA’s hardship determinations under IIRIRA.” Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.2003). Because we lack jurisdiction to review the Id’s discretionary determination that Salvador-Calleros failed to demonstrate the requisite hardship for cancellation of removal, we dismiss that claim. We also lack jurisdiction to review BIA decisions to streamline appeals where the only issue on appeal is the discretionary hardship determination. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003). Cf. Chong Shin Chen v." }, { "docid": "22817568", "title": "", "text": "of removal); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir.2004) (same); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003) (same); Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002) (same); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1140-42 (9th Cir.2002) (same). We next turn to whether the BIA’s judgment that an alien has failed to demonstrate that his removal will cause a qualifying U.S. citizen relative to suffer “exceptional and extremely unusual hardship” is discretionary. Those circuits that have confronted this question have concluded unanimously that such hardship determinations are discretionary judgments and therefore, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), may not be reviewed. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (“[W]e lack jurisdiction to review the subjective, discretionary determination that an alien failed to satisfy the ‘exceptional and extremely unusual hardship’ requirement for cancellation of removal[.]”); See Mendez-Moranchel, 338 F.3d at 179 (“The determination of wheth er the alien has established the requisite hardship [under 8 U.S.C. § 1229b(b)(l)(D) ] is a quintessential discretionary judgment.”); Rueda, 380 F.3d at 831 (“The IJ’s determination under § 1229b(b)(l)(D) that [petitioner]^ children would not suffer an ‘exceptional and extremely unusual hardship’ if [petitioner] were deported to Mexico involved the exercise of discretion.”); Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.2003) (“Because the BIA, acting for the Attorney General, is vested with the discretion to determine whether an alien has demonstrated the requisite hardship, we are without jurisdiction to review the BIA’s hardship determinations under IIRIRA.”); Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1333 (11th Cir.2003) (“[T]he exceptional and extremely unusual hardship determination is a discretionary decision not subject to review.”). The conclusion that “exceptional and extremely unusual hardship” determinations are discretionary judgments is further supported by cases construing the scope of appellate jurisdiction to review BIA denials of “suspension of deportation” — the predecessor to “cancellation of removal”— under the prior, “extreme hardship” statutory formulation. See 8 U.S.C. § 1254(a)(1) (repealed 1996); see, e.g., Ramirez-Alejandre v. Ashcroft, 276 F.3d 517, 518 (9th Cir.2002) (finding no appellate jurisdiction to review discretionary denials of suspension of deportation under" }, { "docid": "19651138", "title": "", "text": "removal.” Id. at 892; see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (reiterating after the REAL ID Act, Pub.L. No. 109-13, Div. B, 119 Stat. 231 (2005), that “we lack jurisdiction to review the IJ’s subjective, discretionary determination that Martinez-Rosas did not demonstrate ‘exceptional and extremely unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D)”). The case before us involves the denial of a motion to reopen, however, not a BIA decision on direct appeal from an IJ, and therefore presents a distinct question. Our most detailed analysis of § 1252(a)(2)(B)(i)’s effect on our jurisdiction to review motions to reopen that im plicate discretionary determinations appears in Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir.2004). In that case, the petitioner withdrew his application for adjustment of status before the IJ, because his stepfather failed to appear at the removal hearing. He subsequently filed a motion to reopen with the IJ, accompanied by an affidavit from his stepfather explaining why he had not attended the hearing. Medina-Morales stated: [W]e conclude that § 1252(a)(2)(B)(i) does not withdraw our jurisdiction to review the BIA’s denial of Medina-Morales’ motion to reopen. Because Medina-Morales abandoned his petition for adjustment of status and instead accepted voluntary departure, the IJ never ruled on Medina-Morales’ adjustment of status petition but instead granted his request for voluntary departure. Medina-Morales does not, therefore, appeal the denial of an adjustment of status application under § 1255 or a denial of voluntary departure under § 1229c. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169 (9th Cir.2003) (rejecting the government’s argument that the denial of an alien’s motion to reopen “involve[d] a ‘judgment regarding the granting’ of voluntary departure” within the meaning of § 1252(a)(2)(B)(i), where the alien had been granted voluntary departure). Rather, Medina-Morales’ appeal “involves a decision regarding the denial of a motion to reopen,” Zazueta-Carrillo, 322 F.3d at 1169-70. The denial of Medina-Morales’ motion to reopen is a decision under 8 U.S.C. § 1182(a)(6)(A)(i), the provision relied upon by the INS as the basis for his removability. See Rodriguez-Lariz [v. INS, 282 F.3d 1218, 1223 (9th Cir.2002)]. The" }, { "docid": "19651137", "title": "", "text": "or nonstatuto-ry), ... except as provided in subpara-graph (D) ... no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245 [8 U.S.C. §§ 1182(h), 1182(h), 1229b, 1229c, or 1255].” Cancellation of removal is relief granted under the Immigration and Nationality Act’s section 240A. Section 1252(a)(2)(B)(i) “eliminates jurisdiction only over decisions by the BIA that involve the exercise of discretion .... [W]e retain jurisdiction over the BIA’s determination of ... purely legal and hence non-discretionary question[s] .... ” Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002). A hardship determination is ordinarily discretionary, and therefore unreviewable under § 1252(a)(2)(B)(i) in petitions for review of direct appeals to. the BIA, unless the petition raises a cognizable legal or constitutional question concerning that determination. We so held in Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003), stating that we lack jurisdiction “to review the BIA’s discretionary determination that an alien failed to satisfy the ‘exceptional and extremely unusual hardship’ requirement for cancellation of removal.” Id. at 892; see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (reiterating after the REAL ID Act, Pub.L. No. 109-13, Div. B, 119 Stat. 231 (2005), that “we lack jurisdiction to review the IJ’s subjective, discretionary determination that Martinez-Rosas did not demonstrate ‘exceptional and extremely unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D)”). The case before us involves the denial of a motion to reopen, however, not a BIA decision on direct appeal from an IJ, and therefore presents a distinct question. Our most detailed analysis of § 1252(a)(2)(B)(i)’s effect on our jurisdiction to review motions to reopen that im plicate discretionary determinations appears in Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir.2004). In that case, the petitioner withdrew his application for adjustment of status before the IJ, because his stepfather failed to appear at the removal hearing. He subsequently filed a motion to reopen with the IJ, accompanied by an affidavit from his stepfather explaining why he had not attended the hearing. Medina-Morales stated: [W]e conclude that § 1252(a)(2)(B)(i) does" }, { "docid": "22763793", "title": "", "text": "v. Gonzales, 439 F.3d 592, 601 (9th Cir.2006) (holding court lacks jurisdiction to review the BIA’s denial of a motion to reopen where the BIA already denied cancellation of removal on direct appeal based on failure to demonstrate exceptional and extremely unusual hardship, and the newly introduced evidence spoke to the same hardship). Accordingly, we lack jurisdiction to review the BIA’s denial of the motion to reconsider because petitioners’ contentions, namely that the agency failed to properly weight their hardship evidence, does not state a colorable due process claim. See Martinez-Rosas, supra, 424 F.3d at 930. Further, we lack jurisdiction to review petitioners’ contention that the agency abused its discretion in denying the motion to reopen to seek prosecutorial discretion based on the recent order of President Obama. See 8 U.S.C. § 1252(g); see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001) (holding that section 1252(g) barred review of discretionary, quasi-prosecutorial decisions by asylum officers and INS district directors to adjudicate cases or refer them to immigration judges for hearing). Lastly, to the extent petitioners contend they received ineffective assistance of counsel, we lack jurisdiction to review unexhausted claims that could have been corrected by the BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Accordingly, we grant respondent’s motion to dismiss for lack of jurisdiction. All other pending motions are denied as moot. The temporary stay of removal will terminate upon issuance of the mandate. DISMISSED." }, { "docid": "22088442", "title": "", "text": "to establish meaningful rehabilitation, the BIA did not rely solely on the fact that his current sobriety in detention was enforced, but also on the fact that he had failed at prior rehabilitation programs. Thus, although Coronado claims an “equal protection violation,” his challenge to the BIA’s denial of relief is not in fact a colorable constitutional claim or question of law over which we could exercise jurisdiction. See 8 U.S.C. § 1252(a)(2)(D) (providing this court with jurisdiction over “constitutional claims or questions of law raised upon a petition for review”); see also Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001) (“[A] petitioner may not create the jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb.”). Rather, Coronado’s argument, properly considered, is merely an attempt to contest the weight the BIA assigned to his sobriety while in detention, which was one of the many factors the BIA considered in deciding whether to grant him cancellation of removal. We have no jurisdiction to review such discretionary determinations under 8 U.S.C. § 1252(a)(2)(B)®. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (recognizing that we lack jurisdiction to review the agency’s discretionary determination regarding the granting of cancellation of removal). Conclusion The petition for review is DENIED in part as to the BIA’s determination that Coronado is inadmissible due to his convictions for possession of methamphetamine; GRANTED in part and REMANDED as to Coronado’s due process claims; and DISMISSED in part as to Coronado’s equal protection claim. The parties shall bear their own costs on appeal. Appendix 1 California Health and Safety Code § 11377(a)(1) CALIFORNIA FEDERAL Schedule III (§ 11056) generally 21 C.F.R. § 1308.13 Schedule IV (§ 11057) generally 21 C.F.R. § 1308.14 Schedule V(§ 11058) generally 21 C.F.R. § 1308.15 CALIFORNIA FEDERAL § 11056(b)(5) 21 C.F.R. § 1308.14(f)(5) § 11056(c)(ll) 21 C.F.R. § 1308.11(e)(1) § 11056(d)(1) 21 C.F.R. § 1308.13(f)(1) § 11057(b)(c)(3) 21 C.F.R. § 1308.14(g)(2) § 11058(d) 21 C.F.R. § 1308.13(e)(2)® California Health and Safety Code § 11377(a)(2) CALIFORNIA FEDERAL § 11054(d)(1) 21 C.F.R. § 1308.11(d)(2) § 11054(d)(2)" }, { "docid": "22817567", "title": "", "text": "to review the BIA’s legal, nondiscretionary determination that a petitioner lacks good moral character because he had spent more than 180 days in jail during the previous ten years) (emphasis added); cf. Mariuta v. Gonzales, 411 F.3d 361 (2d Cir.2005) (holding that we lack jurisdiction, under the “transitional rules” of the IIRI-RA, to review the BIA’s discretionary denial of a request for adjustment of status). Although the principle was strongly implied by our holding in Sepulveda, we now hold explicitly that the BIA’s discretionary determinations concerning whether to grant cancellation of removal constitute “judgment[s] regarding the granting of relief under section ... 1229b” within the meaning of 8 U.S.C. § 1252(a)(2)(B)® and therefore the review of such determinations falls outside our jurisdiction. In so holding, we join five sister circuits that have concluded that 8 U.S.C. § 1252(a)(2)(B)(i) deprives courts of the power to review discretionary determinations concerning cancellation of removal. See Ekasinta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir.2005) (holding that 8 U.S.C. § 1252(a)(2)(B)(i) bars judicial review of discretionary decisions concerning cancellation of removal); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir.2004) (same); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003) (same); Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002) (same); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1140-42 (9th Cir.2002) (same). We next turn to whether the BIA’s judgment that an alien has failed to demonstrate that his removal will cause a qualifying U.S. citizen relative to suffer “exceptional and extremely unusual hardship” is discretionary. Those circuits that have confronted this question have concluded unanimously that such hardship determinations are discretionary judgments and therefore, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), may not be reviewed. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (“[W]e lack jurisdiction to review the subjective, discretionary determination that an alien failed to satisfy the ‘exceptional and extremely unusual hardship’ requirement for cancellation of removal[.]”); See Mendez-Moranchel, 338 F.3d at 179 (“The determination of wheth er the alien has established the requisite hardship [under 8 U.S.C. § 1229b(b)(l)(D) ] is a quintessential discretionary judgment.”); Rueda, 380 F.3d at 831" }, { "docid": "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": "22664589", "title": "", "text": "However, 8 U.S.C. § 1252(a)(2)(B)(i) continues to provide that “[notwithstanding any other provision of law ... no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229b [the cancellation of removal provision].” 8 U.S.C. § 1252(a)(2)(B)(i). Therefore, we lack jurisdiction to review the IJ’s subjective, discretionary determination that Martinez-Rosas did not demonstrate “exceptional and extremely unusual hardship” under 8 U.S.C. § 1229b(b)(l)(D). IV. We do have jurisdiction, however, to review Martinez-Rosas’ due process claims. See Fernandez-Ruiz, 410 F.3d at 587. We review such constitutional claims de novo. Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001). Although we retain jurisdiction to review due process challenges, a petitioner must allege at least a colorable constitutional violation. Id. “To be colorable in this context, the alleged violation need not be substantial, but the claim must have some possible validity.” Id. (citations and quotations omitted). MartinezARosas’ claim that the IJ denied her right to due process by misapplying the facts of her case to the applicable law does not meet this requirement. She does not contend that she was prevented from presenting her case before the IJ, denied a full and fair hearing before an impartial adjudicator, or otherwise denied a basic due process right. Rather, she contends that the IJ erred in finding that she did not meet the requirement of “exceptional and extremely unusual hardship.” Such an assertion is nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction. See 8 U.S.C. § 1252(a)(2)(B)®. Therefore, we dismiss this claim. See Torres-Aguilar, 246 F.3d at 1271. Martinez-Rosas also argues that the BIA denied her right to due process by summarily affirming the IJ’s decision pursuant to 8 C.F.R. § 1003.1(d)(2)®. In Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.2003), we held that the BIA does not deny a petitioner’s right to due process by summarily affirming an IJ’s decision that he does not meet the statutory requirements for cancellation of removal, including the requirement that a qualifying United States citizen or lawfully admitted alien" }, { "docid": "22132583", "title": "", "text": "e.g., Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003) (explaining that IIRIRA did not eliminate our jurisdiction over purely legal questions) (citing Molino-Estrada v. INS, 293 F.3d 1089, 1093-94 (9th Cir. 2002); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002)); Torres-Aguilar v. INS, 246 F.3d 1267, 1270-71 (9th Cir. 2001)- (holding that we had jurisdiction to review a BIA decision for the denial of due process). Our recent decision in Singh v. Holder, 771 F.3d 647 (9th Cir. 2014), confirms that we may review denials of' sua sponte reopening where, unlike in Ekimian and similar cases, there is “law to apply” in doing so. Singh argued in his petition for review that the Board abused its discretion when it erroneously concluded that it lacked authority under 8 C.F.R. § 1003.2(a) to reopen his exclusion proceedings so that he could pursue an adjustment of status application. Singh, 771 F.3d at 650. We concluded that “Ekimian [did] not preclude our jurisdiction.” Id. The jurisdictional bar announced in Ekimian, we explained, “rests on the absence of a judicially manageable standard for us to evaluate-the BIA’s exercise of discretion in ruling on a motion to reopen.” Id. In Singh, however, the BIA did not “deny[ ] a motion to reopen as an exercise of discretion”; it “conclude[d] that it lack[ed] the authority to reopen.” Id. Singh held that the Board’s conclusion as to its lack of authority was contrary to plain statutory -language and our court’s precedents, and thus was “legal error.” Id. at 653. Singh-then granted the petition for review and remanded the case to the Board for an exercise of its discretion— that is, for a decision whether there were truly exceptional circumstances, a decision that remains unreviewable under Ekimi-an. Id. Singh thus limited our review to the Board’s legal conclusion—that, because of legal preclusion, it could not exercise its discretion. There is little distinction as to judicial reviewability between the situation in Singh and the circumstances here. Bonil-la’s contention, upon which we elaborate below, is that the Board misunderstood the parameters of § 212(c) relief as applied" }, { "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": "22623523", "title": "", "text": "891-92 (9th Cir.2003). The REAL ID Act amended § 1252 by retaining language foreclosing our ability to review “any judgment regarding the granting of relief under section ... 1229b,” but adding an exception for “constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.” Pub.L. No. 109-13, div. B., § 106(a)(l)(A)(iii), 119 Stat. 231, 310; see 8 U.S.C. §§ 1252(a)(2)(B)®, (a)(2)(D). The statute thereby “restored judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders.” Marbinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (quoting Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005)). However, it “did not alter” our prior holdings that we are barred from reviewing the merits of a hardship determination. Id. at 929-30. Moreover, we have made clear that any challenge of an IJ’s discretionary determination must present a colorable claim. See id. at 930. “To be colorable in this context, the alleged violation need not be substantial, but the claim must have some possible validity.” Id. (internal quotation marks omitted); see Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001) (“[A] petitioner may not create the jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb ... To determine whether we have jurisdiction over claims labeled as due process violations, we must look beyond the label.”); see also Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.2008) (applying the colorableness requirement to questions of law raised in a petition for review). A petition for review that fails to present such a colorable claim “is nothing more than an argument that the IJ abused his discretion” in determining that the petitioner “did not’ meet the requirement of ‘exceptional and extremely unusual hardship,’ ” which is “a matter over which we have no jurisdiction.” Martinez-Rosas, 424 F.3d at 930. Because the petitioner bears the burden of raising a colorable constitutional claim or question of law, see id., it necessarily follows that we must presume that we lack jurisdiction absent such a showing. B" }, { "docid": "22919211", "title": "", "text": "court does not accept filings seven days a week. Id. Thus, application of Fed. R.App. P. 26(a) to determine the expiration date of a voluntary departure period is neither in contravention of INS regulations nor inconsistent with our holding in Garcia. Because the thirtieth calendar day of Salvador-Calleros’ period of voluntary departure fell on a Saturday, we apply Fed. R.App. P. 26(a)(3). As a result, we exclude Saturday, June 15, 2002, and Sunday, June 16, 2002, from the thirty-day count, which causes her voluntary departure period to actually expire the following Monday. Accordingly, Salvador-Calleros had until Monday, June 17, 2002 to file her stay of voluntary departure. SalvadorCalleros filed her motion for stay of removal encompassing a motion for stay of voluntary departure that day, and it is therefore timely. See Desta, 365 F.3d at 750. The petition for review of the BIA’s decision is DISMISSED in part and DENIED in part. Petitioner’s motion to stay voluntary departure is GRANTED nunc pro tunc to the date of her motion to stay removal. The stays of voluntary departure and removal will expire on the issuance of the mandate. . \"The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRI-RA”) provides two forms of cancellation of removal: cancellation for aliens who are legal permanent residents, and cancellation for aliens who are not.” Romero-Torres v. Ashcroft, 327 F.3d 887, 888 n. 1 (9th Cir.2003) (citing Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 n. 2 (9th Cir.2002)). Because Salvador-Calleros is not a legal permanent resident alien, she is not eligible for relief under 8 U.S.C. § 1229b(a) and must therefore satisfy the more stringent statutory requirements set forth in 8 U.S.C. § 1229b(b). See Montero-Martinez, 277 F.3d at 1140. . Because Salvador-Calleros was placed in removal proceedings on June 1, 1998, her case is governed by the permanent judicial review provisions under section 242 of the Immigration and Nationality Act, now codified at 8 U.S.C. § 1252. See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997) (determining that the effective date of the relevant IIRIRA provisions was April 1, 1997). Specifically, 8" } ]

[ { "docid": "23025513", "title": "", "text": "claim is substantiated by medical evidence. There is no evidence whatsoever to contradict the fact that Mr. Livingston is unable to return to his previous employment, and the ALJ’s findings do not dispute this. Thus, Mr. Livingston has met his initial burden of demonstrating that due to his disability he is unable to return to his initial employment as a mason. Whether or not the burden actually shifts to the Secretary once the claimant has met his burden, there is no doubt that the Secretary must establish that the claimant has the ability to engage in alternative substantial gainful employment activity. If the Secretary is unable, by substantial evidence, to overcome the claimant’s prima facie ease, a reviewing court may choose to reverse with or without further hearings. This circuit has recently announced, in a case remarkably similar to the instant case, standards that the ALJ must meet in developing the record. In Dobrowolsky we stated that the ALJ should “assume a more active role when the claimant is unrepresented” and thus has a “heightened” duty of care and responsibility in such instances. The fact that a claimant is unrepresented by counsel and has knowingly waived this right is not alone sufficient for remand. Hess v. Secretary of HEW, 497 F.2d 837, 840 n.4 (3d Cir. 1974). However, if it is clear that the lack of counsel prejudiced the claimant or that the administrative proceeding was marked by unfairness due to the lack of counsel, this is sufficient for remand, or reversal. We find, as we did in Dobrowolsky, that the claimant was prejudiced by lack of counsel and that the hearing can only be characterized as unfair due to the failure of the ALJ to develop the record. Most importantly, the fact that Mr. Livingston appears to fall within one of the per se categories for disabilities was never explored at the hearing. The statute defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical . . . impairment . . which has . or can be expected to last" } ]

[ { "docid": "20355305", "title": "", "text": "ensure a knowing waiver. The ALJ provided no explanation of the valuable role an attorney could play in the proceedings and “where as here, the record discloses possible mental illness coupled with a misconception of the role of a lawyer, the ALJ should have, at the very least, explained [the right to counsel and the role of an attorney at the hearing] in greater detail and with greater care.” Smith v. Secretary of Health, Education & Welfare, 587 F.2d 857, 860 (7th Cir.1978). Specifically, the claimant should be informed as to the possibility of free counsel and limitations on attorney fees to 25% of any eventual award. Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982); Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir.1981). But see Garcia v. Califano, 625 F.2d 354 (10th Cir.1980). Since there is no indication that Ms. Floyd was ever informed fully of her rights and options, we cannot presume that her statements were the expression of her desire to waive her right to counsel and to represent herself at the hearing. Smith v. Schweiker, supra, at 829. The mere fact that Ms. Floyd ineffectively waived her right to counsel is not, by itself, cause for remand. Vidal v. Harris, 637 F.2d 710, 713 (9th Cir.1981). “Lack of counsel does not affect the validity of the hearing and hence warrant remand, unless the claimant can demonstrate prejudice or unfairness in the administrative proceedings.” Id. see Sykes v. Finch, 443 F.2d 192, 194 (7th Cir.1971). In all proceedings, whether the right to counsel has been exercised or waived, the ALJ has an inherent obligation to develop a full and fair hearing. “Where the right to representation has not been waived, as in this case, the ALJ’s basic obligation to develop a full and fair record rises to a special duty when an unrepresented claimant unfamiliar with hearing procedures appears before him.” Cowart v. Schweiker, supra, at 735. In particular, the ALJ has a duty to “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” Gold v. Secretary of Health, Education" }, { "docid": "23577952", "title": "", "text": "believed he would have to furnish money in order to acquire legal representation. Thompson’s attempt to secure counsel through legal aid strongly suggests that he desired representation. The dialogue regarding counsel also evidences the AU’s failure to fully discuss the benefits of legal representation or the possibility of contingency arrangements. As noted by the court in Hawwat, “[t]he information regarding the cost of any attorney is particularly relevant in disability cases where shortage of funds is likely to be an issue for the claimants.” Hawwat, 608 F.Supp. at 109. The AU should have made an effort to cover these important matters concerning representation by an attorney. His failure to do so leads us to the conclusion that Thompson did not knowingly and intelligently waive his right to counsel. B. Duty of the AU A well-settled proposition regarding social security disability hearings is that “[i]t is a basic obligation of the AU to develop a full and fair record.” Smith v. Secretary of Health, Education and Welfare, 587 F.2d 857, 860 (7th Cir.1978). See Sears v. Bowen, 840 F.2d 394, 402 (7th Cir.1988); Cannon v. Harris, 651 F.2d 513, 519 (7th Cir.1981). More importantly for Thompson, “where the disability benefits claimant is unassisted by counsel, the AU has a duty ‘scrupulously and conscientiously [to] probe into, inquire of, and explore for all the relevant facts....’” Smith v. Secretary, 587 F.2d at 860 (citing Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 43 (2d Cir.1972)). See also Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.1984) (AU’s obligation rises to special duty for unrepresented claimant unfamiliar with hearing process). Failure to fulfill this special duty is good cause to remand for gathering of additional evidence. Cannon, 651 F.2d at 519. The AU does not act as counsel for claimant, but as an examiner who thoroughly develops the facts. Smith v. Schweiker, 677 F.2d at 829. The special duty assigned to the AU “requires, essentially, a record which shows that the claimant was not prejudiced by lack of counsel.” Id. The Secretary argues that waiver of the right to counsel" }, { "docid": "22083415", "title": "", "text": "waived this right [to an attorney] is not alone sufficient for remand. However, if it is clear that the lack of counsel prejudiced the claimant or that the administrative proceeding was marked by unfairness due to the lack of counsel, this is sufficient for remand____ Livingston v. Califano, 614 F.2d 342, 345 (3d Cir.1980) (citation omitted). Accord Sims v. Harris, 631 F.2d 26, 28 (4th Cir.1980) (remand indicated “where the absence of counsel created clear prejudice or unfairness to the claimant”); Domozik v. Cohen, 413 F.2d 5, 9 (3d Cir.1969) (per curiam) (similar). See also Ramirez v. Secretary of HEW, 528 F.2d 902, 903 (1st Cir.1976) (per curiam) (right to counsel, voluntarily waived, will not furnish grounds for disturbing denial of benefits absent showing that claimant “was in any way misled, or that [the] hearing was in any way unfair”). Here, the ALJ was solicitous in attempting to assist the plaintiff. On several occa sions, he offered to give Evangelista “time to complete the record.” After the appellant said he was satisfied that all of the medical reports had been brought forth, the AU volunteered: “I want you to understand clearly that if you have any other reports, hospital or doctor or any other types of reports you feel will be helpful, I want to take time to get them.” At the very end of the hearing, the AU suggested that he hold the record open for a period of time, and Evangelista used this interval to obtain and introduce more reports. The claimant offers no proof suggesting the sort of prejudice or unfairness attributable to self-representation as would warrant remand. Compare Deblois v. Secretary of Health and Human Services, 686 F.2d at 80-81 (holding that ALJ’s failure to develop record of mentally impaired pro se plaintiff constituted good cause for remand); Sims v. Harris, 631 F.2d at 27-28 (remand ordered where lawyerless claimant “confused” and her testimony “directionless and generally incoherent”). To the contrary, we must agree with the district court that Evangelista appeared quite comfortable with his self-representation before the ALJ. He had the benefit of participation in" }, { "docid": "11511594", "title": "", "text": "opinions as to plaintiffs mobility, and the medical basis for them or lack thereof, should have been sought in order to properly assess plaintiffs RFC at step four. In any case, Dr. Weiss’s opinions that plaintiff was permanently disabled were based on an examination that he conducted on June 25, 2001, over four months after he opined that plaintiff could do sedentary work. It is entirely possible that Dr. Weiss, based on the June 25 examination, found new medical evidence on which to base his changed opinion, although the form reports do not elaborate. Again, for the reasons stated previously, the ALJ should have developed the record by obtaining the treatment notes from the June 25 examination. The Commissioner has no duty to insist that a claimant have counsel. Marsh v. Harris, 632 F.2d 296, 300 (4th Cir.1980). The fact that plaintiff was not represented by counsel is not in itself reason to reverse the Commissioner’s decision denying benefits. However, where absence of counsel creates clear prejudice or unfairness to claimant, a remand to the Secretary is proper. Sims v. Harris, 631 F.2d 26, 27-28 (4th Cir.1980). As discussed supra, all of the missing records and lack of factual development are important to plaintiffs case. In particular, because the ALJ explicitly found the issue of therapy significant, it is clear plaintiff was prejudiced by lack of counsel, as counsel could have obtained the missing records, elicited more information from plaintiff at the hearing, attempted to re-contact Dr. Weiss for clarification, and sought permission for the record to be left open so additional evidence could have been procured. Additionally, while the ALJ should have re-contacted Dr. Weiss to resolve the conflict in his opinions about plaintiffs ability to work in any case, counsel could have assisted plaintiff in this regard as well. Therefore, even though a record may contain substantial evidence to support the Commissioner’s decision, the court may still remand for the taking of additional evidence when the ALJ has failed to explore all relevant facts and where the absence of counsel appears to have prejudiced a pro se claimant." }, { "docid": "2801522", "title": "", "text": "are not adversarial in nature, see Currier v. Secretary of Health, Education and Welfare, 612 F.2d 594, 598 (1st Cir.1980), the Secretary had a duty “to develop an adequate record from which a reasonable conclusion can be drawn.” Carrillo Marin, 758 F.2d at 17. We have stated, In most instances, where appellant himself fails to establish a sufficient claim of disability, the Secretary need proceed no further. Due to the non-adversarial nature of disability determination proceedings, however, the Secretary has recognized that she has certain responsibilities with regard to the development of evidence and we believe this responsibility increases in cases where the appellant is unrepresented, where the claim itself seems on its face to be substantial, where there are gaps in the evidence necessary to a reasoned evaluation of the claim, and where it is within the power of the administrative law judge, without undue effort, to see that the gaps are somewhat filled — as by ordering easily obtained further or more complete reports or requesting further assistance from a social worker or psychiatrist or key witness. Currier, 612 F.2d at 598 (citations omitted). Under 42 U.S.C. § 405(g), a remand to the Secretary is appropriate where “the court determines that further evidence is necessary to develop the facts of the case fully, that such evidence is not cumulative, and that consideration of it is essential to a fair hearing.” Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 139 (1st Cir.1987). There also must exist good cause for the failure to submit the new evidence to the ALJ. Id. at 141. It is plain that reports of Dr. Bixby’s treatment of claimant would not be cumulative or irrelevant. Rather, such evidence would fill a gap in the record. Other than the brief Lawrence General Hospital notes there is no evidence from a treating source concerning the extent of claimant’s eczema and how it presently responds to treatment. Records of treatment during the period of time covered by the present application also are material because almost every observer of claimant’s eczema has described it as “severe.”" }, { "docid": "9461082", "title": "", "text": "Dr. Ulrich’s comprehensive and enlightening psychiatric report. There is little doubt that Sears’ mental impairments are of long standing, even if they may not have been so severe as to render him disabled since 1980. Even if a timing problem exists, we conclude, under the admittedly unusua^ circumstances of this case, that the combination of longstanding psychiatric problems, which may alone be disabling, and important biographical information about the claimant, none of which was before the Secretary, is material. We hold that a remand under § 405(g) is warranted in this case. 3. Development of the Record We go on to address Sears’ claim that the Secretary failed to fully and fairly develop the record because on remand Sears may wish to present evidence in addition to Dr. Ulrich’s report. There is no dispute that the Secretary has a duty to fully and fairly develop the record. We are particularly concerned with Sears’ claim because it appears that a more detailed case history, including biographical information, should have been presented to the agency, if only because it might have led to the development of other relevant information. Considered individually, the flaws in the administrative proceedings may not be dis-positive, but when considered in their entirety, they warrant remand. First, as previously mentioned, Dr. Ul-rich’s report contains a detailed social case history, including basic and important biographical information, which is noticeably absent from the administrative record. Certainly had the AU or Appeals Council been aware of Sears’ chaotic childhood and extensive history of institutionalization, further inquiry into his mental state would not only have been indicated but required. Second, Sears was not represented by counsel, but he had a number of advocates from Wisconsin Community Advocates, whose efforts, as we have stated, lacked continuity. We have said that an AU is entitled to presume that a claimant represented by counsel in the administrative hearings has made his best case. Glenn v. Secretary of Health and Human Services, 814 F.2d 387, 391 (7th Cir.1987). This does not necessarily hold true when a claimant is represented by a nonlawyer. In any case, the" }, { "docid": "431741", "title": "", "text": "total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful activity is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.” (Emphasis added, citations omitted.) Here, there is insufficient evidence to show that the jobs of inspector and sorter are realistically within the physical and mental capabilities of Vidal. “[T]he emphasis is on the particular claimant’s capabilities and on what is reasonably possible, not on what is conceivable * * Yawitz v. Weinberger, 498 F.2d 956, 959-960 (8th Cir. 1974). In short, the present record does not contain substantial evidence to prove either the claims of Vidal or those of the Secretary. B The second issue on appeal is whether “good cause” nevertheless exists to remand Vidal’s case for further hearing because he was not represented by counsel and because the administrative law judge did not adequately inform him of his right to an attorney and did not fairly conduct the hearing to protect Vidal’s interests. 42 U.S.C. § 405(g). In Hall, supra, 602 F.2d at 1377, the Ninth Circuit stated that “good cause is, significantly, not a difficult standard to meet.” However, the absence of counsel alone is not sufficient ground for remand. Id. at 1378; Cox, supra, 587 F.2d at 991. In Cox, the Ninth Circuit stated that when plaintiff is not represented by counsel, the administrative law judge’s duty is “to scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts,” and he must be “especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. at 991. Lack of counsel does not affect the validity of the hearing and hence warrant remand, unless the claimant can demonstrate prejudice or unfairness in the administrative proceedings. Hall, supra, 602 F.2d at 1378; Heisner v. Secretary of HEW, 538 F.2d 1329, 1331 (8th Cir. 1976); Sykes v. Finch," }, { "docid": "22083414", "title": "", "text": "defendant has constitutional “right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel”). Moreover, the applicable standard in these “nonadversarial” proceedings is well below the Sixth Amendment threshold. See Teal v. Mathews, 425 F.Supp. at 480 (“The right to counsel in [a disability benefits] hearing is significantly different than the same right in a court proceeding.”) Thus, it is clear that the absence of counsel, without more, creates no basis for remand. See Hess v. Secretary of HEW, 497 F.2d 837, 840 n. 4 (3d Cir.1974) (fact that plaintiff “not represented at the hearing is not, in and of itself, ground for remand”). There must be something extra. Thus, remand for want of representation “is necessitated only where there is a showing of unfairness, prejudice or procedural hurdles insurmountable by laymen.” Teal, 425 F.Supp. at 480 (citations omitted). Cf Cullison v. Califano, 613 F.2d 55, 58 (4th Cir.1980). The Third Circuit expressed the point well: The fact that a claimant is unrepresented by counsel and has knowingly waived this right [to an attorney] is not alone sufficient for remand. However, if it is clear that the lack of counsel prejudiced the claimant or that the administrative proceeding was marked by unfairness due to the lack of counsel, this is sufficient for remand____ Livingston v. Califano, 614 F.2d 342, 345 (3d Cir.1980) (citation omitted). Accord Sims v. Harris, 631 F.2d 26, 28 (4th Cir.1980) (remand indicated “where the absence of counsel created clear prejudice or unfairness to the claimant”); Domozik v. Cohen, 413 F.2d 5, 9 (3d Cir.1969) (per curiam) (similar). See also Ramirez v. Secretary of HEW, 528 F.2d 902, 903 (1st Cir.1976) (per curiam) (right to counsel, voluntarily waived, will not furnish grounds for disturbing denial of benefits absent showing that claimant “was in any way misled, or that [the] hearing was in any way unfair”). Here, the ALJ was solicitous in attempting to assist the plaintiff. On several occa sions, he offered to give Evangelista “time to complete the record.” After the appellant said he was satisfied that all of" }, { "docid": "22116433", "title": "", "text": "an adequate hearing — focuses on his lack of representation by counsel at the administrative hearing. Duncan contends that the AU failed to adequately inform him of his right to be represented by counsel and also failed to conduct a fair and adequate hearing in the absence of counsel. We disagree with both contentions. At the hearing, the AU specifically asked Duncan if he had received the notice sent by the Secretary which informed him of his right to be represented by an attorney at the hearing. Duncan acknowledged that he had indeed received such a notice. Duncan also stated that he wanted to proceed with the hearing, even though he was not represented by counsel. From this it is clear that Duncan was aware of his right to counsel and that he voluntarily waived that right. Under these circumstances, the AU had no further duty to discuss Duncan’s right to representation. The AU acted properly in being satisfied that Duncan was informed of his right. We also find that the AU conducted an adequate hearing. When a disability claimant is not represented by counsel at the administrative hearing, the AU has a special duty to ensure that a full and fair administrative record is developed. Lashley v. Secretary of Health & Human Services, 708 F.2d 1048, 1051 (6th Cir.1983). However, even though we scrutinize with care the administrative record when a claimant appears without counsel, the mere fact that a claimant was unrepresented is not grounds for reversal. Holden v. Califano, 641 F.2d 405, 408 (6th Cir.1981). Rather, we examine each case on its own merits to determine whether the AU failed to fully develop the record and therefore denied the claimant a full and fair hearing. The record in the present case was not adversely affected by the lack of representation or the relatively short hearing. The brevity of the hearing did not result in unfair or unsupported conclusions, cf. Lashley, 708 F.2d at 1052, and Duncan’s mistaken responses to several questions did not unfairly taint the AU’s findings. Duncan’s failure to remember the medications he had taken," }, { "docid": "20355306", "title": "", "text": "at the hearing. Smith v. Schweiker, supra, at 829. The mere fact that Ms. Floyd ineffectively waived her right to counsel is not, by itself, cause for remand. Vidal v. Harris, 637 F.2d 710, 713 (9th Cir.1981). “Lack of counsel does not affect the validity of the hearing and hence warrant remand, unless the claimant can demonstrate prejudice or unfairness in the administrative proceedings.” Id. see Sykes v. Finch, 443 F.2d 192, 194 (7th Cir.1971). In all proceedings, whether the right to counsel has been exercised or waived, the ALJ has an inherent obligation to develop a full and fair hearing. “Where the right to representation has not been waived, as in this case, the ALJ’s basic obligation to develop a full and fair record rises to a special duty when an unrepresented claimant unfamiliar with hearing procedures appears before him.” Cowart v. Schweiker, supra, at 735. In particular, the ALJ has a duty to “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” Gold v. Secretary of Health, Education & Welfare, 463 F.2d 38, 43 (2d Cir. 1972). See Echevarria v. Secretary of Health & Human Services, 685 F.2d 751 (2d Cir.1982); Smith v. Secretary of Health, Education & Welfare, supra. Moreover, the ALJ must be “especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir.1982), quoting Rosa v. Weinberger, 381 F.Supp. 377, 381 (E.D.N.Y.1974). In the case at bar the record amptly demonstrates that for numerous reasons the ALJ failed to discharge his special duty in the course of the thirty-five-minute hearing. First, there was insufficient medical evidence procured: “Given the illegibility of the medical records . .. and the limited educational background of the claimant, it was incumbent upon the administrative law judge to emphasize the desirability of producing, and to afford an opportunity to produce expert testimony as to her medical disabilities and their effect on her capacity to engage in any substantial, gainful work within the meaning of the Act.” Smith v. Secretary of Health, Education" }, { "docid": "18376247", "title": "", "text": "inquire into all of the relevant facts. Finally, the AU failed to inquire into or receive testimony from Vance’s company physician at the place of his last employment. Vance’s wife testified that after Vance was laid off from his part-time job, the company physician informed her that it was because the plaintiff was “totally disabled to do his job” (record p. 30), and that the company physician was willing to write a report to that effect. This evidence is not included in the record or considered by the AU in his decision and, as such, is another example of the AU’s failure to explore a relevant fact. Without considering the above, and perhaps other, relevant evidence, the AU found that Vance was not under a disability as that term is defined under the Social Security Act and therefore not entitled to disability benefits. In doing so, the AU failed to meet the heightened duty of developing a full and fair record which he incurs when the claimant is unrepresented by counsel. Since Vance was not given enough information regarding the right to have an attorney present at his hearing to ensure a knowing and intelligent waiver of this right, and the AU did not meet his obligation to assist Vance in developing the record, it is clear that Vance was prejudiced due to his lack of counsel. This is sufficient cause for remanding this case to the AU for a new hearing. Smith v. Secretary of HEW, 587 F.2d at 860; Jeralds v. Richardson, 445 F.2d 36, 39 (7th Cir.1971). Conclusion Accordingly, cross-motions for summary judgment are denied. This case is remanded to the Administrative Law Judge for further proceedings consistent with this opinion. IT IS SO ORDERED. . The term “disability” is defined in Section 223 to mean: (1)(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; ... (2) For purposes" }, { "docid": "21887059", "title": "", "text": "findings by clinical and diagnostic studies, and also had not stated why these conditions would prevent claimant from working. Despite a timely motion by claimant to remand, the district court affirmed. II. Claimants in disability cases are entitled to a full and fair hearing of their claims, 20 C.F.R. 404.927 and 416.1441, and the failure to have such a hearing may constitute good cause sufficient to remand to the Secretary under 42 U.S.C. § 405(g) for the taking of additional evidence. While lack of representation by counsel is not by itself an indication that a hearing was not full and fair, it is settled that where the absence of counsel created clear prejudice or unfairness to the claimant, a remand is proper. Dombrowolsky v. Califano, 606 F.2d 403 (3rd Cir. 1979); cf. Cross v. Finch, 427 F.2d 406 (5th Cir. 1970). It is equally settled that in pro se cases, Administrative Law Judges have a duty to assume a more active role in helping claimants develop the record. Crider v. Harris, 624 F.2d 15 (4th Cir. 1980); Livingston v. Califano, 614 F.2d 342 (3rd Cir. 1980). Our examination of the record in light of the Administrative Law Judge’s heightened responsibility convinces us that claimant here suffered clear prejudice and unfairness because she was without counsel. It required over seven pages of transcript to establish claimant’s name, age and address for the record. She was confused about how to object to the medical evidence in her file and nearly all of her own testimony concerning her medical problems was directionless and generally incoherent. The record shows that the Administrative Law Judge was unfamiliar with claimant’s former job duties and medical ailments and his inquiries failed to establish the nature of either with any specificity. We find that the Administrative Law Judge did not meet his burden of helping a pro se claimant develop her case in order to insure a full and fair hearing. At oral argument, claimant’s counsel suggested several areas in which evidence would be developed on remand, including I.Q. testing, psychological examination, the possibility of heredity in her" }, { "docid": "22083413", "title": "", "text": "F.2d 76, 80-81 (1st Cir.1982); Currier v. Secretary of HEW, 612 F.2d 594, 598 (1st Cir.1980). Understandably, this responsibility increases when the applicant is bereft of counsel. Id. See also Bornes v. Schweiker, 544 F.Supp. 72, 76 (D.Mass.1982). This case, however, presents none of the ominous portents which have marked cases like Deblois and Currier. In the first place, Evangelista — an experienced claimant who had already been through the administrative process once before with counsel — made a knowing and intelligent waiver of his right to representation after having been informed, both orally and in writing, of his right to counsel. Evangelista had only a tenth grade education, but he was a mature individual who had worked in a variety of white-collar positions requiring good comprehension and communicative skills. There was no unfairness in acceding to his wish: a claimant, after all, has as much right to proceed pro se as he does to engage a lawyer. Cf. McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122 (1984) (criminal defendant has constitutional “right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel”). Moreover, the applicable standard in these “nonadversarial” proceedings is well below the Sixth Amendment threshold. See Teal v. Mathews, 425 F.Supp. at 480 (“The right to counsel in [a disability benefits] hearing is significantly different than the same right in a court proceeding.”) Thus, it is clear that the absence of counsel, without more, creates no basis for remand. See Hess v. Secretary of HEW, 497 F.2d 837, 840 n. 4 (3d Cir.1974) (fact that plaintiff “not represented at the hearing is not, in and of itself, ground for remand”). There must be something extra. Thus, remand for want of representation “is necessitated only where there is a showing of unfairness, prejudice or procedural hurdles insurmountable by laymen.” Teal, 425 F.Supp. at 480 (citations omitted). Cf Cullison v. Califano, 613 F.2d 55, 58 (4th Cir.1980). The Third Circuit expressed the point well: The fact that a claimant is unrepresented by counsel and has knowingly" }, { "docid": "22398457", "title": "", "text": "he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court’s ‘duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.’ ” Thus, a reviewing court may remand a case to the Secretary for good cause, “where relevant, probative and available evidence was not explicitly weighed in arriving at a decision on the plaintiff’s claim for disability benefits.” Saldana v. Weinberger, 421 F.Supp. 1127, 1131 (E.D.Pa. 1976) (Higginbotham, J.); see Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975). III. LACK OF COUNSEL AND THE AGENCY’S DUTY TO DEVELOP THE RECORD WITH SPECIAL CARE When the claimant has been informed of his right to counsel before an administrative hearing and knowingly waives it, his lack of representation is not, of itself, cause for remand. See Hess, supra, 497 F.2d at 840 n.4. Lack of counsel is sufficient cause for remand only if supported by a showing of clear prejudice or unfairness at the administrative hearing. Domozik v. Cohen, 413 F.2d 5, 9 (3d Cir. 1969). Our examination of the record in light of the heightened level of care and the responsibility of the ALJ to assume a more active role when the claimant is unrepresented, convinces us that Dobrowolsky was prejudiced by lack of counsel and the passivity of the AU as developer of evidence in two critical respects: First, it may be that, with properly developed evidence, Dobrowolsky comes within one of the per se qualifications for disability under the regulations. “Where an individual’s impairment(s) meets the duration requirement and is either listed in Appendix 1 or is determined to be medically the equivalent of the listed impairment, a finding of disability shall be made without consideration of the vocational factors.” 20 C.F.R. § 404.1503(d) (1979). Appendix 1 lists, among impairments to the cardiovascular system, “ischemic heart disease” accompanied by “chest pain of cardiac origin” supported by objective evidence from electrocardiograms, exercise testing, or angiographic evidence. Moreover, it states that “[s]o-called ‘anginal equivalent’ locations manifested by pain in the throat," }, { "docid": "22398456", "title": "", "text": "“ ‘[a] hearing on an application for benefits is not an adversary proceeding. The applicant is confronted with no adversary in the usual sense of that term. The Social Security Administration provides an applicant with assistance to prove his claim.’ ” The cases demonstrate that, consistent with the legislative purpose, courts have mandated that leniency be shown in establishing the claimant’s disability, and that the Secretary’s responsibility to rebut it be strictly construed. We declared in Hess that “[although the burden is upon the claimant to prove his disability, due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails.” 497 F.2d at 840. In a black lung case in which the standard of review is identical to review of disability benefits, we quoted approvingly from a decision of the Fourth Circuit Court of Appeals: “[Ujnless the Secretary has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court’s ‘duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.’ ” Thus, a reviewing court may remand a case to the Secretary for good cause, “where relevant, probative and available evidence was not explicitly weighed in arriving at a decision on the plaintiff’s claim for disability benefits.” Saldana v. Weinberger, 421 F.Supp. 1127, 1131 (E.D.Pa. 1976) (Higginbotham, J.); see Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975). III. LACK OF COUNSEL AND THE AGENCY’S DUTY TO DEVELOP THE RECORD WITH SPECIAL CARE When the claimant has been informed of his right to counsel before an administrative hearing and knowingly waives it, his lack of representation is not, of itself, cause for remand. See Hess, supra, 497 F.2d at 840 n.4. Lack of counsel is sufficient cause for remand only if supported by a showing of clear prejudice or unfairness at the administrative hearing. Domozik" }, { "docid": "21718434", "title": "", "text": "action in district court. The district judge affirmed the Secretary’s decision, and this appeal followed. II. DISCUSSION A. Notice of Right to Counsel Appellant first contends that he received inadequate notice of his right to be represented by counsel at the administrative hearing, and that he did not waive his right to counsel at the hearing. We need not address these issues because of our determination, infra, that appellant was not prejudiced by lack of counsel. See Smith v. Schweiker, 677 F.2d 826, 829-30 (11th Cir.1982) (claimant must show prejudice from lack of counsel before court will find that hearing violated due process rights). B. Right to Full and Fair Hearing When an unrepresented claimant unfamiliar with administrative hearing procedures appears before an AU, the AU is under an obligation to develop a full and fair record; i.e. the record must disclose that there has been a full and fair hearing. Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir. Unit B 1981); Ware v. Schweiker, 651 F.2d 408, 414 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982). Appellant contends that he was not granted a full and fair hearing. He asserts that his abbreviated hearing was characterized by superficial questioning in which the AU failed to conscientiously inquire into and develop all salient facts regarding his medical problems and symptoms. We agree that appellant’s hearing was less than totally satisfactory. Questioning was somewhat brief and superficial, and the AU would have been recommended to inquire further into appellant’s medical problems and physical capabilities. However, a showing of prejudice must be made before we will find that a hearing violated claimant’s rights of due process and requires a remand to the Secretary for reconsideration. Smith, 677 F.2d at 829; Ware, 651 F.2d at 414. This at least requires a showing that the AU did not have all of the relevant evidence before him in the record (which would include relevant testimony from claimant), or that the AU did not consider all of the evidence in the record in reaching his decision." }, { "docid": "23233965", "title": "", "text": "§ 404.1567(a). This finding permitted the ALJ to rely solely on the Guidelines to determine that Shannon is not disabled. Id.; Tucker v. Heckler, 776 F.2d 793, 796 (8th Cir.1985). E. Development of the Record Finally, Shannon contends that the Secretary failed to adequately develop the record regarding his medical treatment. He reasons that although he testified that he was still taking Naprosyn and received other medical care after 1987, the ALJ did not attempt to substantiate Shannon’s testimony. Shannon claims that Payton v. Shalala, 25 F.3d 684, 686 (8th Cir.1994), requires us to remand this case for reconsideration. In Payton, we remanded a case after finding that the administrative record regarding the claimant’s medical treatment was unclear. Id. Payton does not compel a remand here. The Payton claimant was unrepresented at the administrative law hearing and presumably could not easily show proof of his activities. In contrast, Shannon was represented by counsel throughout the hearing process. Although the ALJ has a duty to develop the record despite the claimant’s representation by counsel, the fact that Shannon’s counsel did not obtain (or, so far as we know, try to obtain) the items Shannon now complains of suggests that these alleged treatments have only minor importance. See, e.g., Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir.1993). Most significantly, reversal due to failure to develop the record is only warranted where such failure is unfair or prejudicial. Onstad, 999 F.2d at 1234. The substance of Shannon’s alleged other medical visits is unclear at best, and Shannon has not indicated that those visits should be regarded as dis-positive for purposes of his claim. Shannon was treated fairly, and he has failed to show that he was prejudiced. III. CONCLUSION The Secretary’s decision is based on substantial evidence on the record as a whole. Accordingly, we affirm. . The Honorable Jerry W. Caveneau, United States Magistrate Judge for the Eastern District of Arkansas, sitting by consent of the parties. . Disability is defined the same for purposes of disability benefits and SSI benefits. See 20 C.F.R. §§ 404.1505 et seq. (disability); 20 C.F.R." }, { "docid": "10791020", "title": "", "text": "been held that absence of counsel during the prior administrative proceedings does not constitute “good cause” pursuant to section [205(g)] for remand of the case for further administrative proceedings. The Court of Appeals for this Circuit held in Toledo v. Secretary of Health, Education and Welfare, 435 F.2d 1297 (1971), that reversal for lack of attorney is not required where “there is no suggestion that having counsel would have resulted in the presentation of any better case” where “it is quite apparent from the record that plaintiff was fairly treated” and where “the examiner was exceptionally solicitous and helpful” (P. 1297), so that there is no prejudice shown. Cross v. Finch, 5 Cir., 427 F.2d 406, 408-409, which is cited extensively in Vega, supra, and by the Court of Appeals in Toledo, supra, expresses that it is possible, upon a showing of clear prejudice or unfairness caused by a claimant’s lack of counsel, to acquire a reconsideration by the Secretary upon a remand. In Webb v. Finch, 6 Cir., 431 F.2d 1179 (1970), the Court remanded a case upon the representation by counsel, on appeal that additional evidence was available which would produce a different result, and upon the fact that the claimant sought to represent himself at the hearing and was uneffectual and hampered by his lack of education. In this case, such representations have been made by counsel. Additionally, this is not a ease where a remand is sought only because of the lack of the aid of an attorney at the administrative level. In the case at bar, difficulties in communication and an overzealous examiner have caused a claimant, unaided by an attorney, sufficient prejudice to justify a remand and constitute “good cause”, pursuant to 42 U. S.C. § 405(g). The case is remanded to the Secretary of Health, Education and Welfare, pursuant to 42 U.S.C. § 405(g), for the taking of testimony and further proceeding consistent with this opinion. It is so ordered." }, { "docid": "21718438", "title": "", "text": "the Secretary. We AFFIRM. . The notice sent to Kelley did notify him of the possibility of obtaining free legal representation. However, it did not conform with the requirement stated in our earlier cases that the claimant be informed of the limitation of attorney’s fees to 25% of any eventual award. See Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir.1982); Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. Unit B 1981). . Clark indicates a slightly different standard for reviewing whether a claimant received a full and fair hearing depending on whether the unrepresented claimant effectively waived his right to representation. If there has been a waiver of right to counsel, claimant must show \"clear prejudice or unfairness\" caused by lack of counsel in order to prove that he was denied a full and fair hearing and is entitled to a remand to the Secretary. 652 F.2d at 404; see Ware v. Schweiker, 651 F.2d 408, 413-14 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982). If right to counsel was not waived, the AU is under a \"special duty\" to develop a full and fair hearing by conscientiously probing into all relevant facts. Clark, 652 F.2d at 404; Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981). \"This special duty requires, essentially, a record which shows that the claimant was not prejudiced by lack of counsel.\" Smith, 677 F.2d at 829. However, under this standard, “we are not required to determine that the presence of counsel would necessarily have resulted in any specific benefits in the handling of the case before the AU.” Clark, 652 F.2d at 404. These two standards appear to differ only in degree. Both require that the AU fully develop the record. Both require a showing of prejudice to necessitate a remand to the Secretary for reconsideration. The only discernible difference is that a more specific showing of prejudice is required if claimant did not waive his right to counsel. It is irrelevant which standard we apply in the present case because, under either standard," }, { "docid": "22083412", "title": "", "text": "the court with a transcript of administrative proceedings. Such a situation is an example of what could be considered “good cause” for remand. Where, for example, the tape recording of claimant’s oral hearing is lost or inaudible, or cannot otherwise be transcribed ... good cause would exist to remand the claim to the Secretary for appropriate action to produce a record which the court may review____ H.R.Conf.Rep. No. 944, 96th Cong., 2d Sess. 59, reprinted in 1980 U.S.Code Cong. & Ad.News 1277, 1407. See also Bianchi v. Secretary of Health and Human Ser vices, 764 F.2d 44, 46 (1st Cir.1985). Against this backdrop, Evangelista’s asseveration that his earlier self-representation of and by itself satisfied the good cause requirement must fail. We have long recognized that social security proceedings “are not strictly adversarial.” Miranda v. Secretary of HEW, 514 F.2d at 998. Accordingly, we have made few bones about our insistence that the Secretary bear a responsibility for adequate development of the record in these cases. See Deblois v. Secretary of Health and Human Services, 686 F.2d 76, 80-81 (1st Cir.1982); Currier v. Secretary of HEW, 612 F.2d 594, 598 (1st Cir.1980). Understandably, this responsibility increases when the applicant is bereft of counsel. Id. See also Bornes v. Schweiker, 544 F.Supp. 72, 76 (D.Mass.1982). This case, however, presents none of the ominous portents which have marked cases like Deblois and Currier. In the first place, Evangelista — an experienced claimant who had already been through the administrative process once before with counsel — made a knowing and intelligent waiver of his right to representation after having been informed, both orally and in writing, of his right to counsel. Evangelista had only a tenth grade education, but he was a mature individual who had worked in a variety of white-collar positions requiring good comprehension and communicative skills. There was no unfairness in acceding to his wish: a claimant, after all, has as much right to proceed pro se as he does to engage a lawyer. Cf. McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122 (1984) (criminal" } ]

[ { "docid": "18144954", "title": "", "text": "to the United States. Petitioner relies on Roco v. Commissioner, supra at 165 n.2, a case decided by this Court that held that qui tarn payments were taxable as the equivalent of a reward but expressly reserved deciding whether a qui tarn payment was a nontaxable share in the recovery of a reimbursement. Petitioner also relies on Vt. Agency of Natural Res. v. United States ex rel. Stevens, supra, for the proposition that a qui tarn claim is the assignment of the United States’ reimbursement claim to the relator and that, because the payment would not be taxable to the U.S. Government, it should not be taxable to him as an assignee of the nontaxable claim, since as an assignee of the claim he stands in the shoes of the U.S. Government in pursuing the claim. Finally, petitioner contends that the qui tarn payment is not taxable income because it is not proceeds from labor or capital. Respondent contends that the qui tarn payment is a taxable reward and should be included in petitioner’s gross income. Gross income is “all income from whatever source derived”. Sec. 61(a). Courts have given a broad construction to the definition of gross income. Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430 (1955). The effect of such a broad view of gross income is that exclusions from gross income are narrowly construed. Commissioner v. Schleier, 515 U.S. 323, 328 (1995). As noted above, this Court has considered the issue of whether a qui tarn payment is taxable income. In Roco v. Commissioner, 121 T.C. 160 (2003), the taxpayer received a qui tarn payment from the United States for his role as relator in an action pursuant to the FCA. The Court ruled that rewards are included in gross income pursuant to section 1.61-2(a), Income Tax Regs., and that the qui tarn payment was the equivalent of a reward and, therefore, includable in the taxpayer’s gross income. Roco v. Commissioner, supra at 164. Petitioner’s reliance on note 2 of Roco is misplaced. In Roco v. Commissioner, supra at 165 n.2, the Court stated that it" } ]

[ { "docid": "17110239", "title": "", "text": "rely on Ark. Best Corp. v. Commissioner, 485 U.S. 212 (1988). In support of respondent’s position that that amount constitutes ordinary income, respondent relies on the principle established in the following cases: Hort v. Commissioner, 313 U.S. 28 (1941); Commissioner v. P.G. Lake, Inc., 356 U.S. 260 (1958); Commissioner v. Gillette Motor Transp., Inc., 364 U.S. 130 (1960); and United States v. Midland-Ross Corp., 381 U.S. 54 (1965). Petitioners concede that, before the Supreme Court of the United States (Supreme Court) decided Ark. Best Corp. v. Commissioner, supra, the line of cases on which respondent relies would have precluded characterizing petitioners’ right to receive future annual lottery payments as a capital asset within the meaning of section 1221. However, according to petitioners, Ark. Best Corp. effectively overruled that line of cases and requires the result in the instant case that they advocate. Respondent disputes petitioners’ reading of Ark. Best Corp. v. Commissioner, supra. We agree with respondent’s reading of Ark. Best Corp. v. Commissioner, supra. In fact, we have previously concluded that Ark. Best Corp. in no way affected the viability of the principle established in the line of cases on which respondent relies! See Gladden v. Commissioner, 112 T.C. 209, 221 (1999), revd. on another issue 262 F.3d 851 (9th Cir. 2001); FNMA v. Commissioner, 100 T.C. 541, 573 n.30 (1993). We based that conclusion on note 5 of the Supreme Court’s opinion in Ark. Best Corp., which states: Petitioner [Ark. Best Corp.] mistakenly relies on cases in which this Court, in narrowly applying the general definition of “capital asset,” has “construed ‘capital asset’ to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income,” even though these items are property in the broad sense of the word. United States v. Midland-Ross Corp., 381 U.S. 54, 57 (1965). See, e.g., Commissioner v. Gillette Motor Co., 364 U.S. 130 (1960) (“capital asset” does not include compensation awarded taxpayer that represented fair rental value of its facilities); Commissioner v. P.G. Lake, Inc., 356 U.S. 260 (1958) (“capital asset” does not include proceeds" }, { "docid": "11032408", "title": "", "text": "the definition of capital asset as property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business. Petitioner on brief argues that the type of transaction here involved is commonly regarded as a sale stating: “It has never been regarded as compensation for services or compensation for the use of property. (Cf. Commissioner v. Gillette Motor Transport, Inc. — U.S. — (June 27, 1960)).” The Supreme Court, in the Gillette case, in affirming a Memorandum Opinion of this Court, stated: While a capital asset is defined in § 117(a) (1) as “property held by the taxpayer,” it is evident that not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset. This Court has long held that the term “capital asset” is to be construed narrowly in accordance with the purpose of Congress to afford capital-gains treatment only in situations typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the entire gain in one year. Burnet v. Harmel, 287 U.S. 103, 106. Thus the Court has held that an unexpired lease, Hort v. Commissioner, 313 U.S. 28, corn futures, Corn Products Co. v. Commissioner, 350 U.S. 46, and oil payment rights, Commissioner v. P. G. Lake, Inc., 356 U.S. 260, are not capital assets even though they are concededly “property” interests in the ordinary sense. And see Surrey, Definitional Problems in Capital Gains Taxation, 69 Harv. L. Rev. 985, 987-989 and Note 7. Any claim which a taxpayer has regardless of the circumstances from which it arose might, in the broad sense of the term, be considered property. However, for Federal income tax purposes, it is the nature of the claim which is compromised that determines whether the amount received is ordinary income or capital gain. Harry L. Booker, 27 T.C. 932 (1957). Here petitioner had, with the knowledge and cooperation of Metropolitan and other insurance companies, assisted in working out an insurance plan which" }, { "docid": "19182724", "title": "", "text": "assets that do not fit any of the section 1221 exceptions to the definition of a capital asset yet do not appear to properly fit that of a capital asset, courts use the substitute for ordinary income doctrine to exclude certain property. See Lattera v. Commissioner, 437 F.3d 399, 402-403 (3d Cir. 2006), affg. T.C. Memo. 2004-216. Under this doctrine, “capital asset” does not include mere rights to receive ordinary income. Commissioner v. P.G. Lake, Inc., 356 U.S. 260, 265-266 (1958). The practical effect of the substitute for ordinary income doctrine is that the Supreme Court “has consistently construed ‘capital asset’ to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income.” United States v. Midland-Ross Corp., 381 U.S. 54, 57 (1965). The doctrine has been applied by courts directly and indirectly to exclude a variety of assets from the breadth of section 1221. As we explained in Foy v. Commissioner, 84 T.C. 50, 66 (1985), the substitute for ordinary income doctrine is an important court-imposed limitation on the types of property that will qualify as a capital asset. It is now clear that the substitute for ordinary income doctrine is the only recognized judicial limit to the broad terms of section 1221. See Ark. Best Corp. v. Commissioner, supra at 217 n.5. Consequently, when determining whether property is a capital asset under section 1221, unless one of the eight exceptions or the substitute for ordinary income doctrine applies it is a capital asset. 1. Inapplicability of Gladden v. Commissioner Respondent asserts that the appropriate framework for determining the character of petitioners’ gains is the analysis the Court employed in Gladden v. Commissioner, supra. The taxpayers in Gladden agreed to relinquish intangible water rights in exchange for cash. The Court applied contract analysis, specifically a six-factor test (Gladden factors), to determine the character of the taxpayers’ gain on the relinquishment of those rights. Id. at 221. Respondent argues the Gladden factors point to ordinary income treatment for the proceeds of the State tax credit sales. We find that respondent’s argument extends" }, { "docid": "20714698", "title": "", "text": "inflicted upon the relator in tort); Roco, 121 T.C. at 164-65 (qui tam payments are the equivalent of a reward, and rewards are generally includable in gross income); Trantina v. United States, 512 F.3d 567, 570 n. 2 (9th Cir.2008) (the legal question is whether qui tam payments should be taxed as ordinary income or as a capital gain); Alderson v. United States, 718 F.Supp.2d 1186, 1191 (C.D.Cal.2010) (the parties do not dispute that a qui tam award is taxable income, the dispute is whether or not the award is ordinary income or capital gain). We agree with our sister courts that qui tam payments are includable in gross income. The taxpayer in Brooks was a physician who filed an FCA claim against a hospital and two of its doctors for submitting fraudulent Medicare and Medicaid bills to the government for payment. Brooks, 383 F.3d at 522. Dr. Brooks received a qui tam payment of $210,067. He included the relator’s reward in gross income, and timely paid $78,607 in income taxes on that amount. Id. Dr. Brooks also received a second settlement of $300,000, releasing the defendants from any personal injury claims, including claims for retaliation and defamation, as “damages received on account of personal injuries within the meaning of [I.R.C. §] 104(a)(2).” Brooks, 383 F.3d at 522. He excluded the $300,000 from his gross income as compensatory damages for personal injuries, under I.R.C. § 104(a)(2). Id. Dr. Brooks then filed a claim for refund for the $78,607 in income tax that he had paid on the relator’s award. Brooks, 383 F.3d at 522. The Commissioner disallowed his claim for refund and the district court agreed with the government. The Sixth Circuit affirmed finding “1) that the underlying cause of action (the FCA claim) is based upon contract fraud inflicted upon the government, not a tort inflicted upon the relator, and 2) that the relator received his award on account of initiating the prosecution of the FCA claim on behalf of the government, not on account of personal injuries inflicted upon himself, we therefore [affirm] the district court’s holding that" }, { "docid": "20714697", "title": "", "text": "“all income from whatever source derived.” I.R.C. § 61(a). There is no exclusion enumerated in the Code for qui tam awards. See Treas. Reg. § 1.61-l(a). “The taxpayer’s qui tam relator’s award, therefore, must constitute gross income unless the taxpayer is able to show that it is ‘expressly excepted by another provision in the Tax Code.’ ” Brooks v. United States, 383 F.3d 521, 523 (6th Cir.2004). The payment to a relator in a qui tam action is a financial incentive for a private person to provide information and prosecute claims relating to fraudulent activity. See United States ex rel. Semtner v. Med. Consultants, Inc., 170 F.R.D. 490, 495 (W.D.Okla.1997). It is not a penalty imposed on the wrongdoer. Id. Although the question of whether or not qui tam payments are includable in gross income is an issue of first impression in this circuit, other courts that have addressed this issue have uniformly concluded that they are. See Brooks, 383 F.3d at 525 (qui tam payments are not excludable from gross income as personal injuries inflicted upon the relator in tort); Roco, 121 T.C. at 164-65 (qui tam payments are the equivalent of a reward, and rewards are generally includable in gross income); Trantina v. United States, 512 F.3d 567, 570 n. 2 (9th Cir.2008) (the legal question is whether qui tam payments should be taxed as ordinary income or as a capital gain); Alderson v. United States, 718 F.Supp.2d 1186, 1191 (C.D.Cal.2010) (the parties do not dispute that a qui tam award is taxable income, the dispute is whether or not the award is ordinary income or capital gain). We agree with our sister courts that qui tam payments are includable in gross income. The taxpayer in Brooks was a physician who filed an FCA claim against a hospital and two of its doctors for submitting fraudulent Medicare and Medicaid bills to the government for payment. Brooks, 383 F.3d at 522. Dr. Brooks received a qui tam payment of $210,067. He included the relator’s reward in gross income, and timely paid $78,607 in income taxes on that amount. Id." }, { "docid": "17420715", "title": "", "text": "describe the relator’s share in terms applicable to ordinary income rather than capital gain. See D.B., 176 S.W.3d at 349 (noting that relator “earned the fee by discovering the fraud, filing the qui tarn lawsuit, and providing the United States Attorney’s Office with information”); Biddle, 52 Cal.App.4th at 400, 60 Cal.Rptr.2d 569 (comparing work of qui tam relator to “that of a married producer who starts work on a movie and, after, separating from her husband, completes the movie which becomes a smash hit; the contingency of success results in a divisible community asset”). Appellants also rely on United States v. Maginnis, 356 F.3d 1179, 1183 (9th Cir.2004), in support of their second theory. In Maginnis, we set forth two factors that may, in some circumstances, be used to identify a capital asset. The two factors are (1) whether the taxpayer made an “underlying investment of capital in return for the receipt of his ... right,” and (2) whether “the sale of his right ... reflected] an accretion in value over cost to any underlying asset.” Id. Appellants contend that the increase in value between 1993 and 2003 satisfies both Maginnis factors. We conclude that they satisfy neither. First, Alderson did not receive his right to a relator’s share in return for an “underlying investment of capital.” Appellants state in their brief, “Alderson acquired property when he uncovered HCA’s secret accounting practices, when he received documents stamped ‘Confidential— Do not discuss or release to Medicare auditors,’ and when he applied his cost accounting expertise to interpret and explain them.” Uncovering accounting fraud, receiving documents during discovery, and interpreting those documents are not activities that constitute an investment of capital. Appellants point out that Aider-son incurred expenses in acquiring the documents and information that he provided to the government. However, the fact that Alderson incurred expenses is not determinative, for taxpayers routinely incur expenses in the production of ordinary income. Second, the increase in value between 1993 and 2003 did not “reflect an accretion in value over cost to [the] underlying asset.” The increase in value of Alderson’s relator’s share —" }, { "docid": "14767400", "title": "", "text": "Life Insurance Co. v. Commissioner, 25 T.C. 1265 (1956). Apparently, petitioner does not contest respondent’s determination that, in computing gross investment income, the provisions of section 804(b)(1)(C) apply, literally, to the prepayment penalties at issue. Instead, petitioner argues that, notwithstanding section 804(b)(1)(C), the prepayment penalties at issue qualify for long-term capital gain treatment under section 1232 because they represent gain on the retirement of corporate obligations issued after December 31, 1954. Petitioner asserts, therefore, that the prepayment penalties at issue are excludable from income described under section 804(b)(1)(C) by operation of the last sentence of section 804(b), which provides: Except as provided in paragraph (2) [relating to the computation of the excess, if any, of net short-term capital gain over net long-term capital loss], incomputing gross investment income under this subsection, there shall be excluded any gain from the sale or exchange of a capital asset, and any gain considered as gain from the sale or exchange of a capital asset. Respondent, on the other hand, argues that the prepayment penalties at issue do not qualify for long-term capital gain treatment under section 1232, but instead are includable as income described under section 804(b)(1)(C) in computing petitioner’s gross investment income. Although petitioner presents meritorious arguments, we agree with respondent for the following reasons. Upon the retirement of its mortgage loans, petitioner is not entitled to long-term capital gain treatment under section 1232 for amounts that represent ordinary income. United States v. Midland-Ross Corp., 381 U.S. 54, 56-57 (1965), and cases cited therein; see generally Williams v. McGowan, 152 F.2d 570 (2d Cir. 1945). As discussed above, prepayment penalties on mortgage loans in general constitute interest substitutes or additional mortgage loan fees and, therefore, constitute ordinary income. General American Life Insurance Co. v. Commissioner, supra at 1267; United Benefit Life Insurance Co. v. McCrory, 242 F. Supp. at 851; see generally Hort v. Commissioner, 313 U.S. 28 (1941). In the present case, the record contains no evidence indicating that the prepayment penalties at issue differ in kind from those in the foregoing cases. A penalty is a penalty is a penalty." }, { "docid": "17110241", "title": "", "text": "from sale of oil payment rights); Hort v. Commissioner, 313 U.S. 28 (1941) (“capital ■ asset” does not include payment to lessor for cancellation of unexpired portion of a lease). This line of cases, based on the premise that § 1221 “property” does not include claims or rights to ordinary income, has no application in the present context. Petitioner sold capital stock, not a claim to ordinary income. [Ark. Best Corp. v. Commissioner, supra at 217 n.5.] We have reviewed Hort v. Commissioner, supra; Commissioner v. P.G. Lake, Inc., supra; Commissioner v. Gillette Motor Transp., Inc., supra; and United States v. Midland-Ross Corp., supra, and certain of their progeny on which respondent relies. As the Supreme Court stated in Commissioner v. Gillette Motor Transp., Inc., supra at 134: While a capital asset is defined in §117(a)(l) [of the Internal Revenue Code of 1939] as “property held by the taxpayer,” it is evident that not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset. * * * Petitioners assigned to Singer their right to receive a portion of certain future annual lottery payments. In exchange for petitioners’ assignment, petitioners received the discounted value (i.e., $1,040,000) of certain ordinary income which they otherwise would have received during the years 1997 through 2007. We hold that Singer paid petitioners $1,040,000 for the right to receive such future ordinary income, and not for an increase in the value of income-producing property. We further hold that petitioners’ right to receive future annual lottery payments does not constitute a capital asset within the meaning of section 1221 and that the $1,040,000 that petitioners received from Singer is ordinary income, and not capital gain. See United States v. Midland-Ross Corp., 381 U.S. at 57-58; Commissioner v. Gillette Motor Transp., Inc., 364 U.S. at 134-135; Commissioner v. P.G. Lake, Inc., 356 U.S. at 265-267; Hort v. Commissioner, 313 U.S. at 31. We have considered all of petitioners’ arguments and contentions that are not discussed herein, and we find them to be without merit and/or irrelevant." }, { "docid": "19182723", "title": "", "text": "617 (1961). There is “no single definitive” definition of a capital asset. Gladden v. Commissioner, 112 T.C. 209, 218 (1999), revd. on a different issue 262 F.3d 851 (9th Cir. 2001). Instead, it is a very broad term. As the Supreme Court observed: The body of § 1221 establishes a general definition of the term “capital asset,” and the phrase “does not include” takes out of that broad definition only the classes of property that are specifically mentioned. * * * [Ark. Best Corp. v. Commissioner, 485 U.S. 212, 218 (1988).] While Congress created a definition of capital asset under section 1221 that is inherently expansive, many courts, including the Supreme Court, have recognized that the term is not without limits beyond those imposed by statute. Commissioner v. Gillette Motor Transp., Inc., supra at 135; Womack v. Commissioner, 510 F.3d 1295, 1299 (11th Cir. 2007), affg. T.C. Memo. 2006-240; Watkins v. Commissioner, 447 F.3d 1269, 1271 (10th Cir. 2006), affg. T.C. Memo. 2004-244; Gladden v. Commissioner, supra at 218-220. Faced with determining the character of assets that do not fit any of the section 1221 exceptions to the definition of a capital asset yet do not appear to properly fit that of a capital asset, courts use the substitute for ordinary income doctrine to exclude certain property. See Lattera v. Commissioner, 437 F.3d 399, 402-403 (3d Cir. 2006), affg. T.C. Memo. 2004-216. Under this doctrine, “capital asset” does not include mere rights to receive ordinary income. Commissioner v. P.G. Lake, Inc., 356 U.S. 260, 265-266 (1958). The practical effect of the substitute for ordinary income doctrine is that the Supreme Court “has consistently construed ‘capital asset’ to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income.” United States v. Midland-Ross Corp., 381 U.S. 54, 57 (1965). The doctrine has been applied by courts directly and indirectly to exclude a variety of assets from the breadth of section 1221. As we explained in Foy v. Commissioner, 84 T.C. 50, 66 (1985), the substitute for ordinary income doctrine is an important court-imposed" }, { "docid": "23597275", "title": "", "text": "have no bearing on this case. See, e. g.,2 B. Bittker, Federal Taxation of Income, Estates and Gifts ¶ 51.10.3, p. 51-62 (1981); Chirelstein, Capital Gain and the Sale of a Business Opportunity: The Income Tax Treatment of Contract Termination Payments, 49 Minn. L. Rev. 1, 41 (1964); Troxell & Noall, Judicial Erosion of the Concept of Securities as Capital Assets, 19 Tax L. Rev. 185, 187 (1964); Note, The Corn Products Doctrine and Its Application to Partnership Interests, 79 Colum. L. Rev. 341, and n. 3 (1979). See, e. g., Campbell Taggart, Inc. v. United States, 744 F. 2d 442, 456-458 (CA5 1984); Steadman v. Commissioner, 424 F. 2d 1, 5 (CA6), cert. denied, 400 U. S. 869 (1970); Booth Newspapers, Inc. v. United States, 157 Ct. Cl. 886, 893-896, 303 F. 2d 916, 920-921 (1962); W. W. Windle Co. v. Commissioner, 65 T. C. 694, 707-713 (1976). Petitioner mistakenly relies on cases in which this Court, in narrowly applying the general definition of “capital asset,” has “construed ‘capital asset’ to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income,” even though these items are property in the broad sense of the word. United States v. Midland-Ross Corp., 381 U. S. 54, 57 (1965). See, e. g., Commissioner v. Gillette Motor Co., 364 U. S. 130 (1960) (“capital asset” does not include compensation awarded taxpayer that represented fair rental value of its facilities); Commissioner v. P. G. Lake, Inc., 356 U. S. 260 (1958) (“capital asset” does not include proceeds from sale of oil payment rights); Hort v. Commissioner, 313 U. S. 28 (1941) (“capital asset” does not include payment to lessor for cancellation of unexpired portion of a lease). This line of cases, based on the premise that § 1221 “property” does not include claims or rights to ordinary income, has no application in the present context. Petitioner sold capital stock, not a claim to ordinary income. The inventory exception was part of the original enactment of the capital-asset provision in 1924. See Revenue Act of 1924, ch." }, { "docid": "17110238", "title": "", "text": "and which is held by— (A) a taxpayer who so received such publication, or (B) a taxpayer in whose hands the basis of such publication is determined, for purposes of determining gain from a sale or exchange, in whole or in part by reference to the basis of such publication in the hands of a taxpayer described in subparagraph (A). Petitioners contend that their right to receive future annual lottery payments constitutes property held by them and that such property meets the definition of the term “capital asset” in section 1221. Respondent acknowledges that petitioners’ right to receive future annual lottery payments is property in the ordinary sense of the word. However, respondent contends that such right does not qualify as a capital asset within the meaning of section 1221. According to respondent, the $1,040,000 that petitioners received from Singer constitutes ordinary income because petitioners received that amount in exchange for their future right to receive ordinary income. In support of petitioners’ position that the $1,040,000 that they received from Singer constitutes capital gain, petitioners rely on Ark. Best Corp. v. Commissioner, 485 U.S. 212 (1988). In support of respondent’s position that that amount constitutes ordinary income, respondent relies on the principle established in the following cases: Hort v. Commissioner, 313 U.S. 28 (1941); Commissioner v. P.G. Lake, Inc., 356 U.S. 260 (1958); Commissioner v. Gillette Motor Transp., Inc., 364 U.S. 130 (1960); and United States v. Midland-Ross Corp., 381 U.S. 54 (1965). Petitioners concede that, before the Supreme Court of the United States (Supreme Court) decided Ark. Best Corp. v. Commissioner, supra, the line of cases on which respondent relies would have precluded characterizing petitioners’ right to receive future annual lottery payments as a capital asset within the meaning of section 1221. However, according to petitioners, Ark. Best Corp. effectively overruled that line of cases and requires the result in the instant case that they advocate. Respondent disputes petitioners’ reading of Ark. Best Corp. v. Commissioner, supra. We agree with respondent’s reading of Ark. Best Corp. v. Commissioner, supra. In fact, we have previously concluded that Ark. Best Corp." }, { "docid": "15591304", "title": "", "text": "the settlement proceeds as ordinary income or capital gain is not dependent on the fact that the S corporations acquired Wehr’s assets in a capital transaction. As such, the Arrowsmith doctrine is inapplicable. We have considered all of petitioners’ other arguments and find them to be not relevant or without merit. In conclusion, we hold that the settlement of the Xerox lawsuit did not constitute a sale or exchange; consequently, the settlement proceeds constitute ordinary income, not capital gain, to petitioners. Inasmuch as petitioners allocated no part of the purchase price for Wehr’s assets to the Xerox lawsuit, they acquired no basis in the lawsuit. Thus, the entire settlement proceeds are includable in gross income. To reflect the foregoing, Decision will be entered for respondent. In their petition contesting respondent’s determination that the settlement proceeds received by the S corporations (and passed through to petitioners) constitute ordinary income, petitioners asserted, as an alternative position, that the S corporations should have reported the settlement proceeds as a nontaxable return of capital. In their posttrial brief, petitioners abandoned this alternative argument. Our reasoning in Fahey v. Commissioner, 16 T.C. 105 (1951), was followed by the Court of Appeals for the Fifth Circuit in Pounds v. United States, 372 F.2d 342, 349 (5th Cir. 1967), a case relied on by petitioners in support of their argument that the Xerox lawsuit was a capital asset. The Pounds court found that no sale or exchange occurred on the payment of á 12%-per-cent profit interest in a land deal because following the transaction only one party, the taxpayer, received property (the cash payment). The Court of Appeals for the Seventh Circuit, the court to which an appeal in this case lies, has distinguished sales or exchanges from collections and other transactions in which no property or property rights survive. See Chamberlin v. Commissioner, 286 F.2d 850, 852 (7th Cir. 1960), affg. 32 T.C. 1098 (1959); Lee v. Commissioner, 119 F.2d 946, 948 (7th Cir. 1941), affg. 42 B.T.A. 920 (1940). As stated in Fahey v. Commissioner, 16 T.C. at 108, and reiterated in Pounds v. United" }, { "docid": "11032409", "title": "", "text": "and thus to ameliorate the hardship of taxation of the entire gain in one year. Burnet v. Harmel, 287 U.S. 103, 106. Thus the Court has held that an unexpired lease, Hort v. Commissioner, 313 U.S. 28, corn futures, Corn Products Co. v. Commissioner, 350 U.S. 46, and oil payment rights, Commissioner v. P. G. Lake, Inc., 356 U.S. 260, are not capital assets even though they are concededly “property” interests in the ordinary sense. And see Surrey, Definitional Problems in Capital Gains Taxation, 69 Harv. L. Rev. 985, 987-989 and Note 7. Any claim which a taxpayer has regardless of the circumstances from which it arose might, in the broad sense of the term, be considered property. However, for Federal income tax purposes, it is the nature of the claim which is compromised that determines whether the amount received is ordinary income or capital gain. Harry L. Booker, 27 T.C. 932 (1957). Here petitioner had, with the knowledge and cooperation of Metropolitan and other insurance companies, assisted in working out an insurance plan which resulted in those insurance companies underwriting group life insurance for Federal Government employees. The fact that petitioner’s claimed idea or plan was stated to be sold to the insurance companies in the same document which generally released those companies from any claim petitioner might have against them, does not change the fact that the only thing of value which the insurance companies had received was petitioner’s services. Cf. Arthur N. Blum, 11 T.C. 101 (1948), affd. 183 F. 2d 281 (C.A. 3, 1950). Upon consideration of all the facts of record, we hold that petitioner received the $10,000 payment for services rendered and that it is ordinary income to him. Decision will he entered for the respondent. Section 1221 of the Internal Revenue Code of 1954 provides: For purposes of this subtitle, the term “capital asset” means property held by the taxpayer (whether or not connected with his trade or business), but does not include— (1) stock in trade of the taxpayer or other property of a kind which would properly be included in the" }, { "docid": "19182732", "title": "", "text": "None of the categories of property in section 1221 that Congress specifically excepted from the term “capital asset” is applicable to the State tax credits. Accordingly, we hold the State tax credits petitioners sold are capital assets. C. Basis Section 1012 sets forth the foundational principle that the basis of property for tax purposes shall be the cost of the property. Cost, in turn, is defined by regulation as the amount paid for the property in cash or other property. Sec. 1.1012-l(a), Income Tax Regs. Petitioners argue that they have a cost basis in their State tax credits. On their tax return they claimed a cost basis in the credits based upon an allocation of $11,574.74 of professional fees they incurred in connection with establishing and donating the conservation easement. In their cross-motion for partial summary judgment petitioners appear also to argue some portion of their basis in their land should be allo-cable to the State tax credits. We find neither position tenable. The first position assumes the expenses petitioners incurred to donate the conservation easement are properly allocable in their entirety to petitioners’ State tax credits. However, individual taxpayers may deduct ordinary and necessary expenses incurred “in connection with the determination, collection, or refund of any tax” as an itemized deduction. Secs. 211 and 212. Appraisal fees and other ordinary and necessary expenses to determine a taxpayer’s tax liability as the result of a charitable contribution may be deductible under section 212(3). See Neely v. Commissioner, 85 T.C. 934, 950-951 (1985); Robson v. Commissioner, T.C. Memo. 1997-176, affd. without published opinion 172 F.3d 876 (9th Cir. 1999); Biagiotti v. Commissioner, T.C. Memo. 1986-460. Expenses incurred to determine any State tax, including State income tax credits, are also expenses that may fall within the ambit of section 212(3). Sec. 1.212-1(1), Income Tax Regs. Section 212 aside, petitioners’ argument also glosses over section 1012. Under section 1012, cost basis generally is what a taxpayer paid to acquire an asset. See Solitron Devices, Inc. v. Commissioner, 80 T.C. 1, 16-17 (1983), affd. without published opinion 744 F.2d 95 (11th Cir. 1984). Petitioners" }, { "docid": "17110242", "title": "", "text": "asset. * * * Petitioners assigned to Singer their right to receive a portion of certain future annual lottery payments. In exchange for petitioners’ assignment, petitioners received the discounted value (i.e., $1,040,000) of certain ordinary income which they otherwise would have received during the years 1997 through 2007. We hold that Singer paid petitioners $1,040,000 for the right to receive such future ordinary income, and not for an increase in the value of income-producing property. We further hold that petitioners’ right to receive future annual lottery payments does not constitute a capital asset within the meaning of section 1221 and that the $1,040,000 that petitioners received from Singer is ordinary income, and not capital gain. See United States v. Midland-Ross Corp., 381 U.S. at 57-58; Commissioner v. Gillette Motor Transp., Inc., 364 U.S. at 134-135; Commissioner v. P.G. Lake, Inc., 356 U.S. at 265-267; Hort v. Commissioner, 313 U.S. at 31. We have considered all of petitioners’ arguments and contentions that are not discussed herein, and we find them to be without merit and/or irrelevant. To reflect the foregoing, Decision will be entered for respondent. Petitioners paid and claimed as basis $7,009 in legal fees in connection with the assignment in question (assignment cost). In the notice of deficiency (notice) issued to petitioners for their taxable year 1997, respondent disallowed the assignment cost as basis but determined that cost to be a miscellaneous itemized deduction. In the petition, petitioners contested respondent’s determination in the notice with respect to the assignment cost. On brief, petitioners make no arguments or contentions with respect to that cost. We conclude that petitioners have abandoned contesting respondent’s determination in the notice with respect to the assignment cost. See Rybak v. Commissioner, 91 T.C. 524, 566 n.19 (1988). The parties stipulated that both petitioners won the lottery. That stipulation is not accurate. ' On July 10, 1991, Mr. Davis won the lottery, and sometime thereafter he assigned the right to receive the annual lottery payments to himself and his spouse, petitioner Dorothy A. Davis (Ms. Davis), as cotrustees of James and Dorothy Davis Family Trust dated" }, { "docid": "17420714", "title": "", "text": "the relator’s share between 1993, when Alderson filed his suit, and 2003, when he actually received his relator’s share of $27,105,035, was capital gain. We recognize that a relator’s share— even a potential relator’s share — can be property for some purposes. For example, a potential relator’s share can be assigned to others, as Alderson did when he assigned part of his share to his wife and children. But the fact that a relator’s share can be property for some purposes does not make it a capital asset under § 1221(a). Appellants rely on two community property cases in an attempt to support their second theory. See D.B. v. KB., 176 S.W.3d 343, 349 (Tex.Ct.App.2004); In re Marriage of Biddle, 52 Cal.App.4th 396, 400, 60 Cal.Rptr.2d 569 (1997). While a relator’s share can be community property, the definition of community property is much broader than the definition of a capital asset under § 1221(a). Community property includes many types of ordinary income, such as wages earned during marriage. Indeed, the two cases cited by Appellants describe the relator’s share in terms applicable to ordinary income rather than capital gain. See D.B., 176 S.W.3d at 349 (noting that relator “earned the fee by discovering the fraud, filing the qui tarn lawsuit, and providing the United States Attorney’s Office with information”); Biddle, 52 Cal.App.4th at 400, 60 Cal.Rptr.2d 569 (comparing work of qui tam relator to “that of a married producer who starts work on a movie and, after, separating from her husband, completes the movie which becomes a smash hit; the contingency of success results in a divisible community asset”). Appellants also rely on United States v. Maginnis, 356 F.3d 1179, 1183 (9th Cir.2004), in support of their second theory. In Maginnis, we set forth two factors that may, in some circumstances, be used to identify a capital asset. The two factors are (1) whether the taxpayer made an “underlying investment of capital in return for the receipt of his ... right,” and (2) whether “the sale of his right ... reflected] an accretion in value over cost to any underlying" }, { "docid": "17110240", "title": "", "text": "in no way affected the viability of the principle established in the line of cases on which respondent relies! See Gladden v. Commissioner, 112 T.C. 209, 221 (1999), revd. on another issue 262 F.3d 851 (9th Cir. 2001); FNMA v. Commissioner, 100 T.C. 541, 573 n.30 (1993). We based that conclusion on note 5 of the Supreme Court’s opinion in Ark. Best Corp., which states: Petitioner [Ark. Best Corp.] mistakenly relies on cases in which this Court, in narrowly applying the general definition of “capital asset,” has “construed ‘capital asset’ to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income,” even though these items are property in the broad sense of the word. United States v. Midland-Ross Corp., 381 U.S. 54, 57 (1965). See, e.g., Commissioner v. Gillette Motor Co., 364 U.S. 130 (1960) (“capital asset” does not include compensation awarded taxpayer that represented fair rental value of its facilities); Commissioner v. P.G. Lake, Inc., 356 U.S. 260 (1958) (“capital asset” does not include proceeds from sale of oil payment rights); Hort v. Commissioner, 313 U.S. 28 (1941) (“capital ■ asset” does not include payment to lessor for cancellation of unexpired portion of a lease). This line of cases, based on the premise that § 1221 “property” does not include claims or rights to ordinary income, has no application in the present context. Petitioner sold capital stock, not a claim to ordinary income. [Ark. Best Corp. v. Commissioner, supra at 217 n.5.] We have reviewed Hort v. Commissioner, supra; Commissioner v. P.G. Lake, Inc., supra; Commissioner v. Gillette Motor Transp., Inc., supra; and United States v. Midland-Ross Corp., supra, and certain of their progeny on which respondent relies. As the Supreme Court stated in Commissioner v. Gillette Motor Transp., Inc., supra at 134: While a capital asset is defined in §117(a)(l) [of the Internal Revenue Code of 1939] as “property held by the taxpayer,” it is evident that not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital" }, { "docid": "4706336", "title": "", "text": "entire gain in one year.” Commissioner v. Gillette Motor Co., 364 U. S. 130, 134. See also Corn Products Co. v. Commissioner, 350 U. S. 46, 52. In applying this principle, this Court has consistently construed “capital asset” to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income. Thus the Court has held that “capital asset” does not include compensation awarded a taxpayer as representing the fair rental value of its facilities during the period of their operation under government control, Commissioner v. Gillette Motor Co., supra; the amount of the proceeds of the sale of an orange grove attributable to the value of an unmatured annual crop, Watson v. Commissioner, 345 U. S. 544; an unexpired lease, Hort v. Commissioner,. 313 U. S. 28; and oil payment rights, Commissioner v. P. G. Lake, Inc., 356 U. S. 260. Similarly, earned original issue discount cannot be regarded as “typically involving the realization of appreciation in value accrued over a substantial period of time . . . [given capital gains treatment] to ameliorate the hardship of taxation of the entire gain in one year.” Earned original issue discount serves the same function as stated interest, concededly ordinary income and not a capital asset; it is simply “compensation for the use or forbearance of money.” Deputy v. du Pont, 308 U. S. 488, 498; cf. Lubin v. Commissioner, 335 F. 2d 209 (C. A. 2d Cir.). Unlike the typical case of capital appreciation, the earning of discount to maturity is predictable and measurable, and is “essentially a substitute for . . . payments which § 22 (a) expressly characterizes as gross income [; thus] it must be regarded as ordinary income, and it is immaterial that for some purposes the contract creating the right to such payments may be treated as 'property’ or ‘capital.’ ” Hort v. Commissioner, supra, at 31. The $6 earned on a one-year note for $106 issued for $100 is precisely like the $6 earned on a one-year loan of $100 at 6% stated interest. The application of" }, { "docid": "23597276", "title": "", "text": "income items or accretions to the value of a capital asset themselves properly attributable to income,” even though these items are property in the broad sense of the word. United States v. Midland-Ross Corp., 381 U. S. 54, 57 (1965). See, e. g., Commissioner v. Gillette Motor Co., 364 U. S. 130 (1960) (“capital asset” does not include compensation awarded taxpayer that represented fair rental value of its facilities); Commissioner v. P. G. Lake, Inc., 356 U. S. 260 (1958) (“capital asset” does not include proceeds from sale of oil payment rights); Hort v. Commissioner, 313 U. S. 28 (1941) (“capital asset” does not include payment to lessor for cancellation of unexpired portion of a lease). This line of cases, based on the premise that § 1221 “property” does not include claims or rights to ordinary income, has no application in the present context. Petitioner sold capital stock, not a claim to ordinary income. The inventory exception was part of the original enactment of the capital-asset provision in 1924. See Revenue Act of 1924, ch. 234, § 208(a)(8), 43 Stat. 263. Depreciable property used in a trade or business was excluded in 1938, see Revenue Act of 1938, ch. 289, § 117(a)(1), 52 Stat. 500, and real property used in a trade or business was excluded in 1942, see Revenue Act of 1942, ch. 619, § 151(a), 56 Stat. 846. The exception for accounts and notes receivable acquired in the ordinary course of trade or business was added in 1954. Internal Revenue Code of 1954, § 1221(4), 68A Stat. 322. Although congressional inaction is generally a poor measure of congressional intent, we are given some pause by the fact that over 25 years have passed since Corn Products Refining Co. v. Commissioner was initially interpreted as excluding assets acquired for business purposes from the definition of “capital asset,” see Booth Newspapers, Inc. v. United States, 157 Ct. Cl. 886, 303 F. 2d 916 (1962), without any sign of disfavor from Congress. We cannot ignore the unambiguous language of § 1221, however, no matter how reticent Congress has been. If a" }, { "docid": "19218209", "title": "", "text": "as ordinary income. Alternatively, respondent claims that the payments constituted, in effect, consideration either for personal services rendered by Johnson and Frazier as employees of Aetna following the sale or for the covenant not to compete contained in the agreement. Petitioners, on the other hand, relying heavily on the form of the transaction and the terms of the agreement, claim that the transaction constituted a sale of the tangible and intangible assets of an insurance business and that the proceeds are therefore taxable as capital gains. As to the employment arrangement between Aetna and Johnson and Frazier, petitioners contend that various forms of compensation were provided for in the contract in exchange for such services and that these amounts were, in fact, reported by the petitioners as ordinary income. To attribute a portion of the sales price to services rendered by the partners as employees of Aetna, petitioners assert, is to rewrite the contract. The respondent advances two theories to support his characterization of the transaction in question as an anticipatory assignment of income. In the first place, respondent claims that Frazier & Co. could not have sold “property” to Aetna since the partnership did not own the “records, data, memoranda and information of expirations, * * * of its agency plant, good will [etc.] ” which was purportedly sold to Aetna. Secondly, respondent argues that even if Frazier & Co. did own the expiration information, the proceeds of such sale were, in substance, a substitute for future ordinary income and therefore under the doctrine of Commissioner v. P. G. Lake, Inc., 356 U.S. 260 (1958), such proceeds must be taxed to petitioners as ordinary income. We think that respondent’s position must be rejected under the circumstances of the instant case. It has been recognized by this and other courts that insurance expi-rations constitute an intangible asset in the nature of goodwill and that the sale of such assets gives rise to capital gain. George J. Aitken, 35 T.C. 227 (1960); Edward A. Kenney, 37 T.C. 1161 (1962); Alfred H. Thoms, 50 T.C. 247 (1968); and Commissioner v. Killian, 314" } ]

[ { "docid": "2303737", "title": "", "text": "the other” to answer such a “difficulty,” this Court is similarly “ill equipped to rule on this question of Puerto Rico law.” See id. Viewing the inherited claim as a single, indivisible cause of action, however, the Court agrees with defendants that “a judgment cannot be entered in the absence of all the members who are required to participate in the action.” (Docket No. 81 at 9.) If this federal action were dismissed for nonjoinder, plaintiff Maribel Cruz would have an adequate remedy under the fourth factor. Because relief may be afforded to her in the Puerto Rico state court, where she can join the other heirs to pursue the inherited claim, an adequate remedy exists. For the reasons set forth above, joinder of the necessary party heirs is not feasible under Rule 19(a). Because the non-diverse heirs are also indispensable parties pursuant to Rule 19(b), the survivorship action cannot proceed without them. See Picciotto, 512 F.3d at 20 (“By definition, the Rule 19(b) indispensability determination means that there is no viable lawsuit without the missing party.”) Jurisdiction in this case is grounded in diversity of citizenship, and “the absence of a nondiverse, indispensable party is not a mere procedural defect. Rather, it destroys the district court’s original subject matter jurisdiction.” See id. Accordingly, defendants’ motion for summary judgment as to plaintiffs survivorship claim is hereby GRANTED. CONCLUSION For the foregoing reasons, the Court GRANTS in part and DENIES in part defendants’ motion for summary judgment. Maribel Cruz’s individual claim for her own pain and suffering survives. IT IS SO ORDERED. . Christine D’Auria, a second-year student at Northwestern Law School, assisted in the preparation of this Opinion and Order. . The original defendants were: HIMA-San Pablo Hospital Bayamon; Diagnostic and Treatment Center in Cataño; Dr. Ildefonso Rivera-Rivera, his wife, Mrs. Rivera and the conjugal partnership comprised between them; Dr. Ismael Rodriguez-Rivera, his wife, Mrs. Rodriguez and the conjugal partnership (comprised between them); Sindicato de Aseguradores para la Suscripción Conjunta de Seguro de Responsabilidad Profesional Médico-Hospitalaria; ABC and DBF Insurance Companies; John Doe and James Roe as well as any" } ]

[ { "docid": "20657911", "title": "", "text": "by plaintiffs invoked both types of actions under Article 1802. The complaint alleged that all named plaintiffs suffered personal damages as a result of the wrongful death of Torres-López. In addition, the TorresAguayo heirs alone, as members of his estate, exercised the survivorship action. B. The Joinder Issue Questions of subject matter jurisdiction are reviewed de novo. Cooper v. Charter Comm. Entertainment, 760 F.3d 103, 105 (1st Cir.2014). The appeal at bar raises the question of whether the District Court erred in disposing of the entire case, by also disposing of Cason and Benavides’s personal actions, which were separate and distinct from the estate’s survivorship action. •. The issue of whether all heirs must be joined as parties to a diversity suit asserting a survivorship action has been addressed on multiple occasions by the federal district court in Puerto Rico. The several judges therein are squarely divided as to whether a non-diverse absent heir is a necessary and indispensable party under Fed.R.Civ.P. 19. In Jiménez v. Rodriguez-Pagan, 597 F.3d 18 (1st Cir.2010), this court “harbored] considerable skepticism” that non-diverse absent heirs' were, in fact, indispensable parties under Rule 19 to a wrongful death suit. See Jiménez, id. at 23. Because of the unique procedural posture of this case, i.e., the voluntary dismissal of the Aguayo plaintiffs’ claims, we need not rule at this time on the Rule 19 joinder issue. In exercising the survivor-ship action, the Torres-Aguayo heirs, as members of Torres-López’s estate, sought to recover his damages. However, later, they chose to voluntarily dismiss all their claims pursuant to Fed.R.Civ.P. 41(a)(2). Rule 41(a)(2) permits a plaintiff to request dismissal of an action “by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2); ColorirCabrera v. Esso Standard Oil Co. (Puerto Rico), Inc., 723 F.3d 82, 87 (1st Cir.2013). The rule allows a plaintiff to voluntarily dismiss his own case as long as “no other party will be prejudiced.” P.R. Mar. Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir.1981) (citing LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976)) (internal quotation marks omitted). The" }, { "docid": "20657908", "title": "", "text": "upon the Aguayo plaintiffs’ request for voluntary dismissal, as Cason and Benavides were now the only remaining plaintiffs. On January 31, 2012, PREPA replied to plaintiffs’ opposition to dismissal. It did not challenge Cason and Benavides’s Texas domicile and solely argued that the District Court should nonetheless abstain from adjudicating Cason and Benavides’s personal actions under Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). PREPA posited that, regardless of the sisters’ diverse status, they should be required to join the other plaintiffs’ state action and litigate in Commonwealth court. On May 2, 2012, a magistrate judge issued a report and recommendation on PREPA’s motion to dismiss suggesting that the District Court grant the Aguayo plaintiffs’ voluntary dismissal motion. The report and recommendation further suggested that the District Court deny the motion to dismiss for failure to join an indispensable party because the heirs who brought the survivorship action were no longer parties. The magistrate judge noted that there was no concern for the failure to join an indispensable party, as articulated in Cruz-Gascot. More so, she noted that Cason and Benavides, who are not estate members, only claimed individual damages for the pain and suffering their brother’s untimely death personally caused them. Said claims were the only ones left and thus, were jurisdictionally sound. Regarding Colorado River, the magistrate judge noted that abstention under said doctrine required exceptional circumstances and was improper because Ca-son and Benavides were not heirs of the decedent. Contrary to PREPA’s assertion, there was no parallel state court action for them to join. On May 16, 2012, PREPA objected to the report and recommendation. Thereafter, on September 28, 2012, the District Court issued a memorandum and order rejecting the same. The court held that the non-diverse fifth minor child was indispensable and his presence was required to adjudicate the suit. However, his joinder would destroy the parties’ complete diversity. The District Court thus dismissed the entire action, including Cason and Benavides’s individual claims, for lack of subject matter jurisdiction. In doing so, it relied exclusively on Cruz-Gascot." }, { "docid": "14056779", "title": "", "text": "PREPA alleges that all of the third party defendants are directly liable to Plaintiff Carlos Rodriguez for the damages he claims from PREPA. On June 16,1999 the Municipality filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) on the grounds that: (1) this Court lacks subject matter jurisdiction over third party defendant, the Municipality of Ponce; (2) the third party complaint fails to state a claim upon which relief can be granted; and (3) the Municipality of Ponce enjoys sovereign immunity to suits or claims such as the one contained in the third party complaint. (Docket # 42, Municipality of Ponce’s Brief in Support of Motion to Dismiss, at p. 3). Regarding their first argument, lack of subject matter jurisdiction, the Municipality, alleges that this Court does not have jurisdiction because PREPA did not comply with Art. 15.003 of the Autonomous Municipality Law of Puerto Rico, Act No. 81 of August 30, 1991, 21 L.P.R.A. § 4703, because it did not notify the Municipality of its potential liability within the ninety (90) days term specified by said law. In regards to their second and third grounds for dismissal, failure to state a claim and sovereign immunity, the Municipality states that it is not liable because a municipality may not be sued for the discretionary acts of its agents, employees or officials, even if there is an abuse of discretion. In support of this argument the Municipality cites Art. 15.005 of the Autonomous Municipality Law of Puerto Rico, Act No. 81 of August 30, 1991, 21 L.P.R.A. § 4704. On August 20, 1999 defendant and third party plaintiff PREPA filed an opposition to the Municipality of Ponce’s motion to dismiss. (Docket #49). In their opposition, PREPA argues that: (1) The ninety-day notice requirement was not violated in this case because PREPA’s cause of action against the Municipality did not accrue until discovery started in this case and Plaintiff produced the blueprints of the Centro Agrícola Building on January 15, 1999. PREPA filed the third party complaint on March 2,1999 and served process on the third party defendants on March 12, 1999." }, { "docid": "20657914", "title": "", "text": "Cason and Benavides. We also do not see any plain legal prejudice in granting said request. The District Court, however, found that the fifth minor child would be prejudiced if he were not joined to the suit. In doing so, it afforded no weight to the request for voluntary dismissal of the Aguayo plaintiffs, but rather centered its determination on the issue of the fifth minor child’s joinder. Faced with the Aguayo plaintiffs’ request for voluntary dismissal, instead of dismissing the entire case, the District Court should have granted said request and retained jurisdiction over Cason and Benavides’s personal actions. The case no longer involved a survivorship claim belonging to the estate, and, therefore, the indispensability issue became moot. At that point, no heir had an interest in the subject matter of the remaining actions, which are completely separate from those of the estate. As such, there was no potential prejudicial effect in adjudicating Cason and Benavides’s individual claims. Moreover, the court could have afforded complete and meaningful relief as to those parties remaining in the litigation. C. Jurisdiction and Dismissal of Dispensable Parties Even if we held, like the District Court, that the fifth minor child was an indispensable party who defeated complete diversity, this federal suit involved additional parties who were entirely diverse when the federal proceedings began. Instead of dismissing the entire case, including Cason and Benavides’s personal actions, the District Court had yet another alternative to preserve its jurisdiction. The time-of-filing rule is used to determine whether diversity jurisdiction exists. Like most general principles, this rule is susceptible to some exceptions. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). One applicable excep-. tion is found in Fed.R.Civ.P. 21. “[I]t is well settled that Rule 21 invests district courts with authority to allow a dispensable non-diverse party to be dropped at any time, even after judgment has been rendered” and this is done by order of the court on motion of any party or of [the court’s] own initiative ... on such terms as are just. Id. at 832-33," }, { "docid": "20657909", "title": "", "text": "an indispensable party, as articulated in Cruz-Gascot. More so, she noted that Cason and Benavides, who are not estate members, only claimed individual damages for the pain and suffering their brother’s untimely death personally caused them. Said claims were the only ones left and thus, were jurisdictionally sound. Regarding Colorado River, the magistrate judge noted that abstention under said doctrine required exceptional circumstances and was improper because Ca-son and Benavides were not heirs of the decedent. Contrary to PREPA’s assertion, there was no parallel state court action for them to join. On May 16, 2012, PREPA objected to the report and recommendation. Thereafter, on September 28, 2012, the District Court issued a memorandum and order rejecting the same. The court held that the non-diverse fifth minor child was indispensable and his presence was required to adjudicate the suit. However, his joinder would destroy the parties’ complete diversity. The District Court thus dismissed the entire action, including Cason and Benavides’s individual claims, for lack of subject matter jurisdiction. In doing so, it relied exclusively on Cruz-Gascot. , II. Discussion A. The Tort of Wrongful Death In Puerto Rico, the tort of wrongful death gives rise to two separate causes of action recognized under Article 1802 of the Puerto Rico Civil Code. See P.R. Laws Ann. tit. 31 § 5141. The first is the victim’s personal action for damages experienced by him or her prior to death and caused by the negligent or intentional act or omission of another person. See Montalvo, 587 F.3d at 46; Widow of Delgado, 1 P.R. Offic. Trans. 823, 825 (1973). This action is known as a “survivorship action.” The second type of tort action recognized under Article 1802 of the Puerto Rico Civil Code is the personal action that corresponds exclusively and by own right to the decedent’s relatives or any individual who personally suffers damages by virtue of the decedent’s death, regardless of status as an heir. Widow of Delgado, 1 P.R. Offic. Trans, at 825; see Montalvo, 587 F.3d at 47; Hernandez, 80 P.R. Dec. at 98-99. In the present case, the complaint filed" }, { "docid": "21094232", "title": "", "text": "the pain and suffering of the decedent. It is an uncontested fact that the other two forced heirs of Arias Hernández, Carlos Arias Rosado (the son) and Carmen Rosado (the widow), are residents of Puerto Rico and have filed a suit in state court seeking as well redress for both their own pain and suffering and that of their decedent. It is also an uncontroverted fact that all co-defendants are residents of Puerto Rico. On July 10, 2000, co-defendants Eulogio Miranda Quiles, Pedro González Tirado and Universal Insurance Company, filed a Motion to Dismiss arguing that we lacked subject matter jurisdiction. (Docket entry # 49). Essentially, they claim that pursuant to 28 U.S.C. § 1332(c)(2) co-plaintiff Arias Rosado’s citizenship, as “the legal representative of the estate”, is not her own (Florida) but that of the decedent (Puerto Rico). Thus, that by allowing this cause of action to proceed in this case, diversity would be destroyed. As a second argument to sustain the request of dismissal for lack of subject matter jurisdiction, defendants contend that since the survivorship claim belongs to the estate of Arias Hernández, co-plaintiff Arias Rosado has no standing to bring that cause of action by herself because the real party in interest is the estate composed by all of its members. Consequently, defendants reason that since joining them would defeat diversity, the entire suit, or in the alternative the survivorship claim, should be dismissed. On July 18, 2000, we ordered plaintiffs to show cause why we should not dismiss co-plaintiff Arias Rosado’s inherited claim. (Docket entry # 51). In compliance with said order, on July 26, 2000, plaintiffs filed a well reasoned and grounded brief in opposition to defendants’ motion to dismiss. (Docket entry # 52). As stated by defendants during the Pre-Trial Conference, they will not reply to the same. See, Minutes of Proceedings, docket entry # 54. After careful consideration of the parties’ theories, the applicable law and jurisprudence, dismissal, as requested by defendants, is not appropriate. DIVERSITY OF CITIZENSHIP JURISDICTION Diversity jurisdiction exists when the claims in the complaint are between citizens of different" }, { "docid": "20657903", "title": "", "text": "GELPÍ, District Judge. Plaintiffs-Appellants, Marisol Cason and Patricia Benavides (“Cason and Benavides”), filed a wrongful death suit against Defendants in the United States District Court in Puerto Rico. The Defendant-Appellee, Puerto Rico Electric Power Authority (“PREPA”), challenged the District Court’s jurisdiction, arguing that an additional, non-diverse member of the decedent’s estate who was not made a party to the action, was indispensable, and that, in turn, his joinder destroyed the parties’ complete diversity. The District Court agreed that the presence of this nondiverse absent heir was required to adjudicate the suit. The court thus dismissed the entire action for lack of subject matter jurisdiction. This included the decedent’s estate survivorship action, as well as individual damages actions by estate members, the decedent’s consensual partner, and two sisters, Cason and Benavides, who are not his heirs. In this appeal, Cason and Benavides argue that the District Court erred in dismissing the complaint in its entirety, including their personal claims, which were separate and distinct from those of the estate and its members. They also posit that the court erred in its determination that the missing heir was a necessary and indispensable party to the federal action. More so, given that the plaintiffs who asserted the survivorship action requested dismissal voluntarily, Cason and Benavides note that only their individual claims remained before the District Court. Thus, they argue that they are, always have been, and will remain diverse in any federal action brought against the defendants. We conclude that the dismissal of Cason and Benavides’s personal actions was unwarranted. The non-diverse absent party was, in any event, not required to adjudicate the action because the members of the estate requested voluntary dismissal of their claims. The voluntary dismissal eliminated the survivorship action and with it any concern as to the indispensability and joinder issue raised by PREPA. The only claims that remained were those of Cason and Benavides, which were jurisdictionally sound. Without question, the District Court had jurisdiction over said claims. I. Background A. The Accident Edwin Torres-López (“Torres-López” or “the decedent”), died from electrocution on September 20, 2010, at age" }, { "docid": "20448796", "title": "", "text": "negligent acts and omissions, which departed from the standards of medical care and treatment recognized as adequate by the medical profession ... and directly caused and/or contributed to Mr. Pino’s damages and demise....” (Civil No. 11-1768 at Docket No. 1.) This Court has previously held that “all heirs of a ‘sucesión’ must be named as parties to a federal suit based on diversity jurisdiction.” Cruz-Gascot v. HIMA-San Pablo Hosp., 728 F.Supp.2d 14, 26 (D.P.R. 2010) (Besosa, J.) (emphasis added). When a survivorship claim arising under article 1802 does not include all heirs of the estates, dismissal is warranted. See Cruz-Gascot, 728 F.Supp.2d at 19-31 (holding that plaintiffs strategic dismissal of non-diverse parties, who were heirs to a survivorship claim pursuant to article 1802, destroyed the federal court’s original subject matter jurisdiction). In their August 5, 2011 complaint against defendant Hospital Pavia Santurce, only Beatriz and Debra Pino-Betancourt — Mr. Pino’s daughters, and thus heirs to his estate — were named as plaintiffs. (See Civil No. 11-1768 at Docket No. 1.) They alerted the Court, however, to the existence of a third member of Mr. Pino’s estate — Maria T. Betancourt, his widow — through the filing of their May 10, 2012 complaint in Civil No. 12-1326. (See Civil No. 12-1326 at Docket No. 1.) As mentioned above, plaintiff Beatriz Pino-Betancourt is a New York citizen, and plaintiff Debra Pino-Betancourt is a Massachusetts citizen. (Civil No. 11-1768 at Docket No. 1.) Plaintiff Maria Betancourt, however, enjoys Puerto Rico citizenship. (Civil No. 12-1326 at Docket No. 1.) Because defendant Hospital Pavia Santurce is also a citizen of Puerto Rico, the parties would not be completely diverse if Maria Betancourt were joined as a plaintiff. Ml heirs to an estate must be joined as parties to a survivorship lawsuit because “a ‘sucesión’ is not an entity distinct and separate from the persons composing it” and “does not have existence by itself as a juridical person or entity.” Id. at 19. As discussed above, jurisdiction in Civil No. 11-1768 “is grounded in diversity of citizenship, and the absence of a non-diverse, indispensable party to" }, { "docid": "21094231", "title": "", "text": "OPINION AND ORDER GIERBOLINI, District Judge. On this occasion we must decide which citizenship will be taken into account to determine diversity jurisdiction as to the cause of action for the moral damages suffered by plaintiffs’ decedent — that of the decedent or that of the heir claiming said damages. We must also determine whether vel non the members of the estate are indispensable parties without whom the survivorship cause of action cannot be pursued in this court. BACKGROUND This is a wrongful death action arising out of a traffic accident in which Rafael Arias Hernández suffered injuries which eventually resulted in his death. See, Stipulated Uncontested Fact # 9, Proposed Pre-Trial Order, p. 14, docket entry # 53. Jurisdiction is premised on diversity of citizenship. Plaintiffs are Lourdes Arias Rosado (the decedent’s daughter), her husband and their two minor children (the decedent’s grandchildren). They are all Florida residents. In the complaint, they seek compensation for their own pain. However, co-plaintiff Lourdes Arias Rosa-do, as one of the decedent’s forced heirs, also seeks redress for the pain and suffering of the decedent. It is an uncontested fact that the other two forced heirs of Arias Hernández, Carlos Arias Rosado (the son) and Carmen Rosado (the widow), are residents of Puerto Rico and have filed a suit in state court seeking as well redress for both their own pain and suffering and that of their decedent. It is also an uncontroverted fact that all co-defendants are residents of Puerto Rico. On July 10, 2000, co-defendants Eulogio Miranda Quiles, Pedro González Tirado and Universal Insurance Company, filed a Motion to Dismiss arguing that we lacked subject matter jurisdiction. (Docket entry # 49). Essentially, they claim that pursuant to 28 U.S.C. § 1332(c)(2) co-plaintiff Arias Rosado’s citizenship, as “the legal representative of the estate”, is not her own (Florida) but that of the decedent (Puerto Rico). Thus, that by allowing this cause of action to proceed in this case, diversity would be destroyed. As a second argument to sustain the request of dismissal for lack of subject matter jurisdiction, defendants contend that since" }, { "docid": "20657912", "title": "", "text": "considerable skepticism” that non-diverse absent heirs' were, in fact, indispensable parties under Rule 19 to a wrongful death suit. See Jiménez, id. at 23. Because of the unique procedural posture of this case, i.e., the voluntary dismissal of the Aguayo plaintiffs’ claims, we need not rule at this time on the Rule 19 joinder issue. In exercising the survivor-ship action, the Torres-Aguayo heirs, as members of Torres-López’s estate, sought to recover his damages. However, later, they chose to voluntarily dismiss all their claims pursuant to Fed.R.Civ.P. 41(a)(2). Rule 41(a)(2) permits a plaintiff to request dismissal of an action “by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2); ColorirCabrera v. Esso Standard Oil Co. (Puerto Rico), Inc., 723 F.3d 82, 87 (1st Cir.2013). The rule allows a plaintiff to voluntarily dismiss his own case as long as “no other party will be prejudiced.” P.R. Mar. Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir.1981) (citing LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976)) (internal quotation marks omitted). The court is responsible for ensuring that such prejudice will not occur. Colorir-Cabrera, 723 F.3d at 87; Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir.2000). Moreover, a district court should grant a motion for voluntary dismissal unless a defendant can show that it would suffer some plain legal prejudice as a result thereof, as opposed to facing the mere prospect of a second lawsuit. See Doe v. Urohealth Sys., Inc., 216 F.3d 157,161 (1st Cir.2000). Here, Defendants did not oppose the Aguayo plaintiffs’ request for voluntary dismissal, which included the claim by Torres-López’s estate. Pursuant to Local Rule of Civil Procedure 7(b), “[ujnless within (14) days after the service of a motion the opposing party files a written objection to the motion, incorporating a memorandum of law, the opposing party shall be deemed to have waived objection.” D.P.R. Civ. R. 7(b). Rather than opposing the request for voluntary dismissal filed by the Aguayo plaintiffs, Defendants’ response was limited to requesting the District Court not to exercise diversity jurisdiction over the claims brought by" }, { "docid": "20657904", "title": "", "text": "the court erred in its determination that the missing heir was a necessary and indispensable party to the federal action. More so, given that the plaintiffs who asserted the survivorship action requested dismissal voluntarily, Cason and Benavides note that only their individual claims remained before the District Court. Thus, they argue that they are, always have been, and will remain diverse in any federal action brought against the defendants. We conclude that the dismissal of Cason and Benavides’s personal actions was unwarranted. The non-diverse absent party was, in any event, not required to adjudicate the action because the members of the estate requested voluntary dismissal of their claims. The voluntary dismissal eliminated the survivorship action and with it any concern as to the indispensability and joinder issue raised by PREPA. The only claims that remained were those of Cason and Benavides, which were jurisdictionally sound. Without question, the District Court had jurisdiction over said claims. I. Background A. The Accident Edwin Torres-López (“Torres-López” or “the decedent”), died from electrocution on September 20, 2010, at age thirty-three. At that time, he owned and operated a company which performed subcontract work for telecommunications companies in Puerto Rico, including, the Puerto Rico Telephone Company (“PRTC”). He was electrocuted by a “down-guy” wire connected to a utility pole which was improperly energized while he was removing and installing telecommunications cables. PREPA and the PRTC are purportedly responsible for the utility pole in question. B. Procedural Background 1. The Resulting Litigation in the District Court Daisy Aguayo-Cuevas, the decedent’s consensual partner, individually and on behalf of her and Torres-López’s four minor children (the “Torres-Aguayo heirs,” and together with their mother the “Aguayo plaintiffs”) filed a wrongful death com plaint in the United States District Court on September 15, 2011. Cason and Benavides, the decedent’s sisters, also joined the action as named plaintiffs. The named defendants were PREPA, the PRTC, and their insurance companies (collectively “Defendants”).. All plaintiffs sought relief for their own pain and suffering resulting from the illegal death of Torres-López. In addition, the Torres-Aguayo heirs sought to recover for the damages their father" }, { "docid": "20657913", "title": "", "text": "court is responsible for ensuring that such prejudice will not occur. Colorir-Cabrera, 723 F.3d at 87; Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir.2000). Moreover, a district court should grant a motion for voluntary dismissal unless a defendant can show that it would suffer some plain legal prejudice as a result thereof, as opposed to facing the mere prospect of a second lawsuit. See Doe v. Urohealth Sys., Inc., 216 F.3d 157,161 (1st Cir.2000). Here, Defendants did not oppose the Aguayo plaintiffs’ request for voluntary dismissal, which included the claim by Torres-López’s estate. Pursuant to Local Rule of Civil Procedure 7(b), “[ujnless within (14) days after the service of a motion the opposing party files a written objection to the motion, incorporating a memorandum of law, the opposing party shall be deemed to have waived objection.” D.P.R. Civ. R. 7(b). Rather than opposing the request for voluntary dismissal filed by the Aguayo plaintiffs, Defendants’ response was limited to requesting the District Court not to exercise diversity jurisdiction over the claims brought by Cason and Benavides. We also do not see any plain legal prejudice in granting said request. The District Court, however, found that the fifth minor child would be prejudiced if he were not joined to the suit. In doing so, it afforded no weight to the request for voluntary dismissal of the Aguayo plaintiffs, but rather centered its determination on the issue of the fifth minor child’s joinder. Faced with the Aguayo plaintiffs’ request for voluntary dismissal, instead of dismissing the entire case, the District Court should have granted said request and retained jurisdiction over Cason and Benavides’s personal actions. The case no longer involved a survivorship claim belonging to the estate, and, therefore, the indispensability issue became moot. At that point, no heir had an interest in the subject matter of the remaining actions, which are completely separate from those of the estate. As such, there was no potential prejudicial effect in adjudicating Cason and Benavides’s individual claims. Moreover, the court could have afforded complete and meaningful relief as to those parties remaining in" }, { "docid": "20657906", "title": "", "text": "suffered prior to his death via a survivorship action. The District Court’s jurisdiction was premised on diversity of citizenship; at the time the complaint was filed, all named plaintiffs were domiciled in San Antonio, Texas, and all named defendants were domiciled in Puerto Rico. On November 10, 2011, PREPA filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, as well as Fed.R.Civ.P. 12(b)(7), for failure to join a necessary party under Fed.R.Civ.P. 19. Therein, PREPA contended that the survivorship cause of action should be dismissed pursuant to Cruz-Gascot v. HIMA-San Pablo Hosp. Bayamón, 728 F.Supp.2d 14 (D.P.R.2010), which held that all members of an estate must be named as parties to a survivorship action brought under Puerto Rico law. PREPA averred that a fifth member of Torres-López’s estate was missing from the action, to wit, a child from a previous relationship (hereinafter the “fifth minor child”). PREPA argued that this additional heir was a necessary and indispensable party, and thus, the case could not proceed without him. However, because this child was domiciled in Puerto Rico, joining him would vitiate the court’s diversity jurisdiction. Moreover, PREPA argued that the personal actions for damages brought by Cason and Benavides should also be dismissed in “equity and good conscience” pursuant to Fed.R.Civ.P. 19(b) because dismissal would allow said plaintiffs to initiate a suit in the Commonwealth court of Puerto Rico. On January 9, 2012, the Aguayo plaintiffs voluntarily moved to dismiss without prejudice of all their personal damages claims, as well as the estate’s survivorship action pursuant to Fed.R.Civ.P. 41(a)(2). They informed the court that they no longer resided in Texas having moved to Puerto Rico. They also stated that they intended to pursue all their claims in Commonwealth court along with the fifth minor child. However, they noted that Cason and Benavides, who remained Texas citizens, would continue to assert their personal claims in federal court. The Defendants did not file any opposition to the voluntary dismissal request. On January 9, 2012, all plaintiffs opposed PREPA’s motion to dismiss noting that the same became moot" }, { "docid": "5398279", "title": "", "text": "hole at Domenech Avenue without properly covering them, nor providing protective barriers or any kind of warning to the public about the dangerous condition of the road, and Margarita Segarra for her negligent driving” (Docket # 29, at ¶ II). Jurisdiction is premised on diversity. In the complaint, plaintiff Aponte Cintrón, as the decedent’s forced heir, seeks compensation both for his own pain and suffering and the pain and suffering of the decedent. Under Puerto Rico law, a cause of action for the pain and suffering experienced by a decedent prior to his death passes on to his/her estate, in accordance with the law of inheritance, and is actionable by his/her heirs as part of their legal portion (legitima). See Molina v. C.R.U.V., 114 D.P.R. 295, 313 (1983); Vda. de Delgado v. Boston Ins. Co., 101 D.P.R. 598, 607 (1973). In addition to Aponte Cintrón, there are two other non-diverse forced heirs of the decedent: his other son, Gabriel Aponte Cintrón, and his widow, María Milagros Cintrón (Attachment to Docket # 57).' In its motion, SJG contends that as the survivorship claim belongs to the estate, said other forced heirs who are not parties to this lawsuit are indispensable, and since joining them would defeat the Court’s subject matter jurisdiction, this suit should be dismissed altogether. Alternatively, SJG argues that the survivorship claim should be dismissed. Applicable Law/Analysis The First. Circuit in Pujol v. Shearson/American Express, 877 F.2d 132 (1st Cir.1989) explained the analytical sequence that a district court should follow in deciding a party joinder problem under Rule 19(b) as follows: Rule 19(b), which governs indispensable parties, works in two steps. Step one requires the district court to decide whether a person fits the definition of those who should “be joined if feasible” under Rule 19(a). That is to say, is the person (what use to be called) a “necessary” party? Rule 19(a) says that a person should be joined, when feasible, if (1) in the person’s absence complete relief cannot be accorded among those already parties or (2) the person claims an interest relating to the subject of" }, { "docid": "20657910", "title": "", "text": ", II. Discussion A. The Tort of Wrongful Death In Puerto Rico, the tort of wrongful death gives rise to two separate causes of action recognized under Article 1802 of the Puerto Rico Civil Code. See P.R. Laws Ann. tit. 31 § 5141. The first is the victim’s personal action for damages experienced by him or her prior to death and caused by the negligent or intentional act or omission of another person. See Montalvo, 587 F.3d at 46; Widow of Delgado, 1 P.R. Offic. Trans. 823, 825 (1973). This action is known as a “survivorship action.” The second type of tort action recognized under Article 1802 of the Puerto Rico Civil Code is the personal action that corresponds exclusively and by own right to the decedent’s relatives or any individual who personally suffers damages by virtue of the decedent’s death, regardless of status as an heir. Widow of Delgado, 1 P.R. Offic. Trans, at 825; see Montalvo, 587 F.3d at 47; Hernandez, 80 P.R. Dec. at 98-99. In the present case, the complaint filed by plaintiffs invoked both types of actions under Article 1802. The complaint alleged that all named plaintiffs suffered personal damages as a result of the wrongful death of Torres-López. In addition, the TorresAguayo heirs alone, as members of his estate, exercised the survivorship action. B. The Joinder Issue Questions of subject matter jurisdiction are reviewed de novo. Cooper v. Charter Comm. Entertainment, 760 F.3d 103, 105 (1st Cir.2014). The appeal at bar raises the question of whether the District Court erred in disposing of the entire case, by also disposing of Cason and Benavides’s personal actions, which were separate and distinct from the estate’s survivorship action. •. The issue of whether all heirs must be joined as parties to a diversity suit asserting a survivorship action has been addressed on multiple occasions by the federal district court in Puerto Rico. The several judges therein are squarely divided as to whether a non-diverse absent heir is a necessary and indispensable party under Fed.R.Civ.P. 19. In Jiménez v. Rodriguez-Pagan, 597 F.3d 18 (1st Cir.2010), this court “harbored]" }, { "docid": "20448797", "title": "", "text": "to the existence of a third member of Mr. Pino’s estate — Maria T. Betancourt, his widow — through the filing of their May 10, 2012 complaint in Civil No. 12-1326. (See Civil No. 12-1326 at Docket No. 1.) As mentioned above, plaintiff Beatriz Pino-Betancourt is a New York citizen, and plaintiff Debra Pino-Betancourt is a Massachusetts citizen. (Civil No. 11-1768 at Docket No. 1.) Plaintiff Maria Betancourt, however, enjoys Puerto Rico citizenship. (Civil No. 12-1326 at Docket No. 1.) Because defendant Hospital Pavia Santurce is also a citizen of Puerto Rico, the parties would not be completely diverse if Maria Betancourt were joined as a plaintiff. Ml heirs to an estate must be joined as parties to a survivorship lawsuit because “a ‘sucesión’ is not an entity distinct and separate from the persons composing it” and “does not have existence by itself as a juridical person or entity.” Id. at 19. As discussed above, jurisdiction in Civil No. 11-1768 “is grounded in diversity of citizenship, and the absence of a non-diverse, indispensable party to the survivorship claim is not a mere procedural defect. Rather, it destroys the district court’s original subject matter jurisdiction.” Cruz-Gascot, 728 F.Supp.2d at 31. Pursuant to Fed.R.Civ.P. 19, the Court finds that plaintiff Maria T. Betancourt is a necessary and indispensable party to a survivorship claim which may be pled in Civil No. 11-1768 because she is a member of Mr. Pino’s “sucesión.” See id. at 26-31. Including her as a plaintiff, however, will destroy diversity jurisdiction. Accordingly, the Court must DISMISS WITHOUT PREJUDICE the survivorship claim which plaintiffs may have pled in Civil No. 11-1768. Diversity jurisdiction does exist for each plaintiffs individual claim for their own pain and suffering due to Mr. Pino’s death, however, and thus those claims survive. IT IS SO ORDERED. . Consolidation is a procedural device that does not alter the character of separate suits. Gen. Contracting & Trading Co., LLC v. Interpole, Inc. 899 F.2d 109, 113 (1st Cir.1990); see also Am. Postal Workers Union v. U.S. Postal Serv., 422 F.Supp.2d 240, 245 (D.D.C. 2006) (\"[Cjonsolidation does not" }, { "docid": "20657920", "title": "", "text": "43, 47 (1st Cir.2009); Hernández v. Fournier, 80 P.R. Dec. 93, 98-99 (1957). . At times, the term \"survivorship action” or \"inherited claim” has been confused by the parties to refer to claims brought by the decedent’s heirs for their own pain and suffering resulting from an illegal death. This is incorrect. As will be discussed further, there are two types of actions that stem from the tort of wrongful death: individual damages and survivorship actions. Both actions are separate and distinct from one another. See Montalvo, 587 F.3d at 46; Widow of Delgado v. Boston Ins. Co., 1 P.R. Offic. Trans. 823, 825, 101 P.R. Dec. 598, 602 (1973). .Plaintiffs-Appellants allege they had no pri- or knowledge of the fifth minor child’s existence when they filed their federal suit. It appears they learned he existed once PREPA asked the District Court to take judicial notice of a Commonwealth court case brought by ,his mother on his behalf. . The District Court did not address the Colorado River argument. Therefore, we do not, either. . Article 1802 provides that: \"A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done.” P.R. Laws Ann. tit. 31 § 5141. . Having died intestate, Torres-López’s heirs, or his estate, are his five minor children who acquired altogether the rights of their predecessor, Vetilla v. Piza, 17 P.R. Dec. 1112, 1911 WL 4909, at *4 (1911), and who now participate in a hereditary community where each \"conveys a joint right to the aggregate” inheritance. See Kogan v. Registrador, 125 P.R. Dec. 636, 652 (1990). . Compare, e.g., Reyes-Ortíz v. HIMA San Pablo-Bayamón, No. 11-1273 (D.P.R. June 16, 2014); Segura-Sanchez v. Hosp. Gen. Menonita, Inc., 953 F.Supp.2d 344, 348 (D.P.R.2013); Casillas-Sanchez v. Ryder Mem’l Hosp., Inc., No. 11-2092, 2013 WL 3943517, at *1 (D.P.R. July 30, 2013); Pagán-Ortíz v. Carlo-Dominguez, 977 F.Supp.2d 106 (D.P.R.2013); Pino-Betancourt v. Hosp. Pavía Santurce, 928 F.Supp.2d 393, 396 (D.P.R.2012), (cases holding that all heirs are required and indispensable parties to a wrongful death suit asserting a" }, { "docid": "20657919", "title": "", "text": "authority to drop the “diversity destroying” party, thereby curing any purported jurisdictional defect it found and salvaging its jurisdiction as between those parties who were properly before it. “[E]ven on questions of a court’s adjudicatory authority in particular, salvage operations are ordinarily preferable to the wrecking ball.” Grupo Dataflux, 541 U.S. at 592, 124 S.Ct. 1920 (Ginsburg, J., dissenting). III. Conclusion For the reasons stated, the judgment of the District Court is REVERSED, and the case is REMANDED for proceedings consistent with this opinion. Costs shall be assessed against the appellees. . Puerto Rico law permits relatives of the deceased and certain other individuals, such as consensual partners, to bring a personal claim under Article 1802 of the Puerto Rico Civil Code, for their personal damages caused by the decedent’s wrongful death. P.R. Laws Ann. tit. 31 § 5141. Such an action is not limited to family members, is not dependent upon status as an heir, and does not require plaintiff to have suffered physical injury or economic loss. See Montalvo v. GonzálezAmparo, 587 F.3d 43, 47 (1st Cir.2009); Hernández v. Fournier, 80 P.R. Dec. 93, 98-99 (1957). . At times, the term \"survivorship action” or \"inherited claim” has been confused by the parties to refer to claims brought by the decedent’s heirs for their own pain and suffering resulting from an illegal death. This is incorrect. As will be discussed further, there are two types of actions that stem from the tort of wrongful death: individual damages and survivorship actions. Both actions are separate and distinct from one another. See Montalvo, 587 F.3d at 46; Widow of Delgado v. Boston Ins. Co., 1 P.R. Offic. Trans. 823, 825, 101 P.R. Dec. 598, 602 (1973). .Plaintiffs-Appellants allege they had no pri- or knowledge of the fifth minor child’s existence when they filed their federal suit. It appears they learned he existed once PREPA asked the District Court to take judicial notice of a Commonwealth court case brought by ,his mother on his behalf. . The District Court did not address the Colorado River argument. Therefore, we do not, either. ." }, { "docid": "20657905", "title": "", "text": "thirty-three. At that time, he owned and operated a company which performed subcontract work for telecommunications companies in Puerto Rico, including, the Puerto Rico Telephone Company (“PRTC”). He was electrocuted by a “down-guy” wire connected to a utility pole which was improperly energized while he was removing and installing telecommunications cables. PREPA and the PRTC are purportedly responsible for the utility pole in question. B. Procedural Background 1. The Resulting Litigation in the District Court Daisy Aguayo-Cuevas, the decedent’s consensual partner, individually and on behalf of her and Torres-López’s four minor children (the “Torres-Aguayo heirs,” and together with their mother the “Aguayo plaintiffs”) filed a wrongful death com plaint in the United States District Court on September 15, 2011. Cason and Benavides, the decedent’s sisters, also joined the action as named plaintiffs. The named defendants were PREPA, the PRTC, and their insurance companies (collectively “Defendants”).. All plaintiffs sought relief for their own pain and suffering resulting from the illegal death of Torres-López. In addition, the Torres-Aguayo heirs sought to recover for the damages their father suffered prior to his death via a survivorship action. The District Court’s jurisdiction was premised on diversity of citizenship; at the time the complaint was filed, all named plaintiffs were domiciled in San Antonio, Texas, and all named defendants were domiciled in Puerto Rico. On November 10, 2011, PREPA filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, as well as Fed.R.Civ.P. 12(b)(7), for failure to join a necessary party under Fed.R.Civ.P. 19. Therein, PREPA contended that the survivorship cause of action should be dismissed pursuant to Cruz-Gascot v. HIMA-San Pablo Hosp. Bayamón, 728 F.Supp.2d 14 (D.P.R.2010), which held that all members of an estate must be named as parties to a survivorship action brought under Puerto Rico law. PREPA averred that a fifth member of Torres-López’s estate was missing from the action, to wit, a child from a previous relationship (hereinafter the “fifth minor child”). PREPA argued that this additional heir was a necessary and indispensable party, and thus, the case could not proceed without him. However, because" }, { "docid": "20657907", "title": "", "text": "this child was domiciled in Puerto Rico, joining him would vitiate the court’s diversity jurisdiction. Moreover, PREPA argued that the personal actions for damages brought by Cason and Benavides should also be dismissed in “equity and good conscience” pursuant to Fed.R.Civ.P. 19(b) because dismissal would allow said plaintiffs to initiate a suit in the Commonwealth court of Puerto Rico. On January 9, 2012, the Aguayo plaintiffs voluntarily moved to dismiss without prejudice of all their personal damages claims, as well as the estate’s survivorship action pursuant to Fed.R.Civ.P. 41(a)(2). They informed the court that they no longer resided in Texas having moved to Puerto Rico. They also stated that they intended to pursue all their claims in Commonwealth court along with the fifth minor child. However, they noted that Cason and Benavides, who remained Texas citizens, would continue to assert their personal claims in federal court. The Defendants did not file any opposition to the voluntary dismissal request. On January 9, 2012, all plaintiffs opposed PREPA’s motion to dismiss noting that the same became moot upon the Aguayo plaintiffs’ request for voluntary dismissal, as Cason and Benavides were now the only remaining plaintiffs. On January 31, 2012, PREPA replied to plaintiffs’ opposition to dismissal. It did not challenge Cason and Benavides’s Texas domicile and solely argued that the District Court should nonetheless abstain from adjudicating Cason and Benavides’s personal actions under Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). PREPA posited that, regardless of the sisters’ diverse status, they should be required to join the other plaintiffs’ state action and litigate in Commonwealth court. On May 2, 2012, a magistrate judge issued a report and recommendation on PREPA’s motion to dismiss suggesting that the District Court grant the Aguayo plaintiffs’ voluntary dismissal motion. The report and recommendation further suggested that the District Court deny the motion to dismiss for failure to join an indispensable party because the heirs who brought the survivorship action were no longer parties. The magistrate judge noted that there was no concern for the failure to join" } ]

[ { "docid": "11931740", "title": "", "text": "of nonimmigrant to that of person admitted for permanent residence.” (Emphasis added.) We think that, on the contrary, the statutory history demonstrates that when Congress intended to limit Section 245 to nonimmigrants it did so without ambiguity and that the change in the statute by the use of the general term “an alien” must be given full effect. Had Congress meant to make only the limited change suggested by respondent, it would have been sufficient merely to eliminate the words “bona fide” from the phrase “bona fide nonimmigrant.” Instead the inclusive term “an alien” was left unmodified in the statute. In view of the repeated attention given Section 245 by Congress, we can only conclude that it was fully aware of the significance of the language it selected. Section headings cannot control the meaning of an enactment that is otherwise clear. United States v. Minker, 350 U.S. 179, 185, 76 S.Ct. 281, 100 L.Ed. 185 (1956) ; Lapina v. Williams, 232 U.S. 78, 92, 34 S.Ct. 196, 58 L.Ed. 515 (1914) (use of word “immigration” in title of act cannot limit to alien immigrants application of provision respecting “aliens”). The consideration to be given a section heading is particularly slight when, as here, it is included in a codification that has not been enacted as positive law and does not appear in the amending statute, 74 Stat. 505 (1960). See Osborn v. United States, 322 F.2d 835, 839 (5th Cir. 1963). We have not been cited to anything in the legislative history of the 1960 amendment which would support the position of respondent. If anything, the legislative history compels a contrary conclusion. The Senate Report states: “Section 10 of the joint resolution, as amended, would amend section 245(a) of the Immigration and Nationality Act which authorizes the Attorney General under certain circumstances to adjust the status of an alien who was admitted into the United States as a bona fide nonim-migrant to that of an alien lawfully admitted for permanent residence. Under the proposed amendment to section 245(a) the procedure for the adjustment of the immigration status of aliens to" } ]

[ { "docid": "9712176", "title": "", "text": "or with foreign nations.” In dealing with such false bills, appellant Duque took the risk that a court would reject his interpretation of 49 U.S.C. sec. 81 as limiting the reach of the criminal penalties imposed by section 121. We are aware of no opinion of any court that has held that prosecution under section 121 cannot reach false bills of lading originating abroad, purporting to represent goods shipped from abroad; there is therefore no law in this circuit or anywhere else upon which appellant Duque could reasonably rely. For the above reasons, we therefore deny defendant Duque’s motion for rehearing. We also withdraw the last two paragraphs on p. 1049 (including accompanying footnote 35) and the first complete paragraph on p. 1050 of our original opinion, United States v. Castro, 829 F.2d 1038, that is, the portion beginning “Section 81, however ...” and ending that affected the United States.” No member of this panel nor other Judge in regular active service on the court having requested that the court be polled on rehearing in banc, Duque’s suggestion of rehearing in banc is denied. . Titles and section headings can serve as limited interpretive aids if the statute itself is ambiguous. See Scarborough v. Office of Personnel Management, 723 F.2d 801, 811 (11th Cir.1984) (\"Section headings cannot limit the plain meaning of the text and may be utilized to interpret a statute, if at all, only where the statute is ambiguous.”) In the present case, however, further research has revealed that the heading to 49 U.S.C. sec. 81, \"Transportation included,” was not part of the statute as passed by Congress, see 39 Stat. 538, ch. 415, sec. 1, but was added subsequent to enactment by those responsible for codification of the legislation. This title cannot therefore properly be of aid in determining the intent of Congress as regards section 81. See Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1039 (D.C.Cir.1986) (where section subtitle was not added by publisher or codifier, but was part of act as written and passed by Congress, subtitle was an indication of congressional" }, { "docid": "14547616", "title": "", "text": "Upon a report by a customs officer, U.S. attorney, or any special attorney, having charge of any claim arising under the customs laws, showing the facts upon which such claim is based, the probabilities of a recovery and the terms upon which the same may be compromised, the Secretary of the Treasury is authorized to compromise such claim, if such action shall be recommended by the General Counsel for the Department of the Treasury. [Italic added.] According to plaintiff, section 617 only authorizes the settlement of liquidated cliams for antidumping duties. In this connection, plaintiff observes — correctly—that the legislative history of section 617 is essentially silent. However, in support of its position that section 617 authorizes only the settlement of liquidated claims for duties, plaintiff relies heavily upon the history of Rev. Stat. 3469 which was repealed in 1978. See 92 Stat. 2679. Rev. Stat. 3469 at the time relevant here read as follows: Upon a report by a district attorney, or any special attorney or agent havmg charge of any claim in favor of the United, States showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim accordingly. * * * [Italic added.] Based on the similarity of language between the t!wo provisions, plaintiff argues that section 3469 was the precursor of section 617 and therefore that the case law and administrative construction of section 3469 apply for the most part to section 617. As for case law, plaintiff relies on United States v. George, 25 F Cas. 1277 (C.C.S.D.N.Y. 1869) which, it says, supports its position that section 617 authorizes only the settlement of liquidated claims. In George, certain informers claimed entitlement to a portion of sums that were paid to the Government under a compromise agreement. The informers contended that the sums constituted fines or penalties in which they had a right to share. The Government" }, { "docid": "5974699", "title": "", "text": "Preserve Am. Color Television v. United States, 527 F.Supp. 341, 348 (C.I.T.1981). In Color Television, for example, the appellant urged the court to limit the Tariff Act’s broad statutory language, “any claim arising under the customs laws,” to “claims for fines, penalties and forfeitures.” In support of its argument, appellant referred the court to the statutory heading. The court, however, refused to resort to section headings, because the text was “not ambiguous.” Id. at 348. In the instant case, the statute involved presents equally unambiguous language. Just as the Tariff Act referred to “any claim,” 19 U.S.C. § 1617, the CSRA authorizes the MSPB to award attorney fees in “any ease” in which the agency’s action was clearly without merit. 5 U.S.C. § 7701(g)(1). Under these circumstances, resort to section headings to contradict the plain language of the statute is inappropriate. Brotherhood, supra; Frazier, supra. Apart from headings, Dawson relied on the placement of retirement matters in Subpart G and labor-management and employee relations in Subpart F to suggest that Chapter 83, of Subpart G, and Chapter 77, of Subpart F, are exclusive of one another. In reality, however, the various Civil Service chapters and subparts are extremely interrelated. In Frazier v. MSPB, 672 F.2d 150 (D.C.Cir.1982), an employee sought attorney fees under § 7701(g)(1) after prevailing in a § 1206 corrective action proceeding. The Special Counsel had initiated the petition under 5 U.S.C. § 1206(c)(1)(B) after his investigation substantiated the claimant’s allegations that a prohibited personnel practice had been engaged in. Although the Board permitted the claimant to intervene on his own behalf, the MSPB concluded that § 7701(g)(l)’s fee authorization did not extend to corrective action proceedings. The court of appeals reversed, concluding that while the placement and history of the provision indicate that Congress did not expect fees questions to arise in corrective action proceedings, the intent of section 7701(g) together with the statutory scheme clearly give the Board the flexibility to award fees in appropriate corrective action cases. 672 F.2d at 170. To us, the Frazier decision presents a more viable scenario of the statutory scheme" }, { "docid": "2011181", "title": "", "text": "United States v. L’Hoste, 609 F.2d 796, 809-11 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980). Several factors compel that conclusion. The first is the plain meaning of the language employed in section 1963(a), stating that “[w]hoever violates any provision of section 1962 ... shall forfeit to the United States” the illegally used interests. As the Fifth Circuit pointed out in L’Hoste, although there are occasions where “shall” has been interpreted to vest discretionary, rather than mandatory, authority to act, the wording of the statute is the most persuasive evidence of Congressional intent. L’Hoste, supra, 609 F.2d at 810. Nor does the legislative history ever discuss forfeiture in discretionary terms, see, e.g., H.R.Rep. No. 91-1549, 91st Cong., 2d Sess. 57, reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4033; S.Rep. No. 91-617, 91st Cong., 1st Sess. 160 (1969). The wording of the remaining penalties established under section 1963(a) also supports a mandatory interpretation of forfeiture: section 1963(a) states that a defendant “shall be fined not more than $25,000 or imprisoned not more than twenty years, or both ” (emphasis added). Thus, where Congress intended for the penalty to be optional, as in the choice between fine or imprisonment, they specified that there was such a choice. The section’s wording provides no choice regarding the imposition of forfeiture. Moreover, a literal reading of section 1963(a) is consistent with RICO purposes. The criminal forfeiture provision was viewed as an innovative means of addressing the spread of organized crime that has infiltrated so many aspects of American society. Of foremost concern during Congressional hearings on RICO was the weakness of current efforts at curtailing the spread of organized crime to legitimate business endeavors. For instance, the Senate Judiciary Committee’s report quoted the Attorney General’s testimony that: While the prosecutions of organized crime leaders can seriously curtail the operations of the Cosa Nostra, as long as the flow of money continues, such prosecutions will only result in a compulsory retirement and promotion system as new people step forward to take the place of those convicted. S.Rep. No. 91-617," }, { "docid": "4640281", "title": "", "text": "Immediately following this pricing, the second sub-heading reads “Complex Options.” Id. Both sub-headings, as well as all the other sub-headings in the Transactional Pricing section, are set in the same typeface, font, color and size, which could create the impression that each sub-heading refers to the pricing that follows immediately thereafter. Thus, a reasonable person could conclude that the special pricing for former Brown Company customers includes only those fees listed in the Transactional Pricing section, or only the Transaction Pricing and Margin Rates sections, as the prohibition on charging inactivity fees appears under the “Account Activity Fees” section. Id. (“No inactivity fees. E*TRADE Securities will not charge fees when your account is inactive for a period of time.”). However, a reasonable person could also conclude that the limiting statement applies to the entirety of plaintiffs’ fee schedule because the limiting language is an overarching substantive provision in plaintiffs’ fee schedule. This conclusion is strengthened if the main street investor schedule (“MSI fee schedule”), which authorizes E*Trade to charge the $40 dollar fee in question, is also considered. Docket No. 21 (Somvichian Dec.), Exh. 2 (MSI Fee Schedule). Because there are two reasonable interpretations of this provision, the contract is ambiguous. Since no extrinsic evidence can be considered at this stage, the motion to dismiss the breach of contract claim must be denied. Granite Partners, L.P. v. Bear, Stearns & Co. Inc., 17 F.Supp.2d 275, 304-05 (S.D.N.Y.1998); see also Weiss v. Weinreb & Weinreb., 17 A.D.3d 353, 793 N.Y.S.2d 100, 100 (2005) (“Since the provision in question was susceptible to two different interpretations, the resolution of this ambiguity was for the trier of fact and may be based on extrinsic evidence.”). E*Trade claims that only the MSI fee schedule, and not plaintiffs’ fee schedule, applies to plaintiffs. Consideration of the MSI fee schedule, which is similar to plaintiffs’ fee schedule, except that it authorizes the fee, does not compel a different result. It appears that E*Trade intended the MSI fee schedule to apply to plaintiffs; however, E*Trade’s intent is not determinative here. Although the MSI fee schedule demonstrates weaknesses in" }, { "docid": "23060903", "title": "", "text": "terms: Section 1963 provides criminal penalties — including criminal forfeitures — for violation of section 1962. The maximum penalty authorized under subsection (a) is a $25,000 fine and imprisonment for 20 years. But, in addition, violations shall be punished by forfeiture to the United States of all property and interests, as broadly described, which are related to the violations. H.R.Rep. No. 91-1549, 91st Cong., 2d Sess. 57 (1970), reprinted in [1970] U.S.Code Cong. & Admin.News at p. 4033 (emphasis added). Section 1963 provides criminal penalties for the violation of section 1962, above. Subsection (a) provides the remedy of criminal forfeiture. Forfeiture trials are to be governed by the Fed.R.Crim.P. But see Fed.R.Crim.P. 54(a)(5). The language is designed to accomplish a forfeiture of any “interests” of any type in the enterprise acquired by the defendant or in which the defendant has participated in violation of section 1962. For the purposes of this section, 18 U.S.C. § 3563, insofar as it is applicable to forfeiture is no longer the law. ... A $25,000 fine and imprisonment for not more than 20 years are also provided. S.Rep. No. 91-617, 91st Cong., 1st Sess. 160 (1969) (emphasis added). Forfeiture was viewed as an innovative measure that was necessary to undermine the economic base of those convicted of racketeering activity. See id. at 78-80. Moreover, when Congress intended the penalty of forfeiture to be non-mandatory in another section of the Organized Crime Control Act of 1970, it clearly indicated this in the language of the enactment. In prohibiting and establishing penalties for illegal gambling activities, Congress also included a forfeiture provision, although it used permissive instead of mandatory language: “Any property, including money, used in violation of the provisions of this section may be seized and forfeited to the United States.” 18 U.S.C. § 1955(d) (1976) (emphasis added). Because the clear wording of section 1963 has not been rebutted, but on the contrary is supported by such extrinsic aids as a reading of the statute as a whole, its purpose, and its legislative history, we must conclude that it mandates the district court to order" }, { "docid": "9712177", "title": "", "text": "banc, Duque’s suggestion of rehearing in banc is denied. . Titles and section headings can serve as limited interpretive aids if the statute itself is ambiguous. See Scarborough v. Office of Personnel Management, 723 F.2d 801, 811 (11th Cir.1984) (\"Section headings cannot limit the plain meaning of the text and may be utilized to interpret a statute, if at all, only where the statute is ambiguous.”) In the present case, however, further research has revealed that the heading to 49 U.S.C. sec. 81, \"Transportation included,” was not part of the statute as passed by Congress, see 39 Stat. 538, ch. 415, sec. 1, but was added subsequent to enactment by those responsible for codification of the legislation. This title cannot therefore properly be of aid in determining the intent of Congress as regards section 81. See Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1039 (D.C.Cir.1986) (where section subtitle was not added by publisher or codifier, but was part of act as written and passed by Congress, subtitle was an indication of congressional intent): 73 Am.Jur.2d, Statutes, sec. 96, at 321 (\"Where headings of chapters, articles, or sections are mere arbitrary designations inserted for convenience of reference by clerks or other persons who have no legislative authority, such heads are held not to be proper matters for consideration in the interpretation of the statute.”) For this reason we are withdrawing that portion of our original opinion in this case which looks to the heading of section 81 to discern the meaning of that section. As a final observation, not intended to excuse our own oversight, we note that it was the government, in its brief, that first argued the significance of \"Transportation included” to support its position. While disputing the government’s interpretation of this language, appellant Duque did not, in either his reply brief or in his more recent motion for rehearing, point out that the heading was not part of the original statute as passed by Congress. It was only during our consideration of Duque’s motion for rehearing that this court discovered the flaw in the government’s" }, { "docid": "19702276", "title": "", "text": "Hearings on H.R. 8119 and H.R. 8222 Before the Subcomm. On Trade of the House Comm. On Ways and Means, 95th Cong. 46, 57-58 (1977). That remark does not provide a sufficient basis to disregard the plain statutory language and infer the presence of a statute of limitations for the collection of unpaid duties when Congress had not imposed one. Natori argues that the title of section 1592 — “Penalties for fraud, gross negligence, and negligence” — informs the scope of the section. Accordingly, Natori argues, actions for the recovery of unpaid duties under section 1592(d) necessarily fall within the reach of former section 1621, which applied the statute of limitations to “any pecuniary penalty or forfeiture of property.” As we have noted, however, this court held in Blum that the recovery of duties under section 1592(d) is not a penalty, and the inclusion of section 1592(d) within a statutory section denominated “penalties” does not make it one. As the court noted in Blum, the fact that the title of section 1592 refers to penalties “is not to say that each and every subsection of that section is to be characterized as a penalty provision.” 858 F.2d at 1569. The titles of statutes are simply reference guides and cannot limit or contravene the statutory text. See Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-529, 67 S.Ct. 1387, 1392, 91 L.Ed. 1646 (1947) (statutory heading “is but a short-hand reference to the general subject matter involved”). Section 1592 deals mainly with penalties and forfeitures, so it is not surprising that the title of the statute refers to penalties and forfeitures, even though one portion of the statute provides a remedy that does not fit within that category. In sum, Natori has failed to persuade us that former section 1621 should be read, contrary to its plain terms, to impose a limitations period on the collection of unpaid duties of which the gov ernment was deprived as the result of a violation of section 1592(a). Ill Natori next argues that the government, failed to prove a section" }, { "docid": "8348942", "title": "", "text": "titles cannot contradict the meaning of clear text. See Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947); Scarborough v. Office of Personnel Management, 723 F.2d 801 (11th Cir.1982); United States v. Carrillo-Colmenero, 523 F.2d 1279 (5th Cir.1975). As the Scarborough court stated: [Rjeliance on headings is not a favored method of statutory construction. Section headings cannot limit the plain meaning of the text and may be utilized to interpret a statute, if at all, only where the statute is ambiguous ... resort to statute headings to contradict plain language of the statute is inappropriate. Id. at 811-12. Moreover, since the language of Section 1123 is obviously intended to provide for plans that could go forward for confirmation subject only to the requirements of section 1129 — including the rate approval power of a state regulatory agency — it would be nonsensical to interpret Section 1123 to simply list what a plan may include but with the result that such a plan could not be confirmed. Cf. Connecticut v. Schweiker, 684 F.2d 979, 993 (D.C.Cir.1982), cert. denied 459 U.S. 1207, 103 S.Ct. 1197, 75 L.Ed.2d 440 (1983) in which the Court rejected an argument that a federal statute providing “notwithstanding any other provision of law” there was no time limit for the filing or payment of certain claims did not mean what it said. The result in Schweiker was reached even though it appeared that Congress “did not focus on” the particular situation present before the Court. Id. at 993. It is significant for present purposes that in the one statutory provision in chapter 11 of the Bankruptcy Code where Congress specifically focused on the extent to which a plan for a public utility should be subject to regulatory approval (i.e., § 1129) it required approval of only rate changes provided in the plan. Bankruptcy Code, § 1129(a)(6). Moreover, that specific requirement of regulatory approval was expressed in terms of a regulatory commission with jurisdiction “after confirmation of the plan” with regard to rates to be charged by the reorganized" }, { "docid": "4640280", "title": "", "text": "give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the parties’ expressions sp that their reasonable expectations will be realized.” Fernandez v. Price, 63 A.D.3d 672, 880 N.Y.S.2d 169, 169 (2009). It is possible that when read as a whole, the contract has two reasonable interpretations. In such cases, the contract is ambiguous and it may be necessary to refer to material extrinsic evidence of the parties’ intent. Omni Berkshire Corp. v. Wells Fargo Bank, N.A., 307 F.Supp.2d 534, 540 (S.D.N.Y.2004). Plaintiffs’ fee schedule contains four discrete sections: Transactional Pricing, Margin Rates, Account Activity Fees and Special Request Fees. Plaintiffs’ Fee Schedule at 1. The limiting statement in plaintiffs’ fee schedule appears only within the Transactional Pricing section. Id. This section is composed of different sub-headings. The limiting statement appears directly below the first sub-heading, which reads “Brown Co. Special Pricing.” Id. Immediately after the Brown Co. Special Pricing sub-heading and its accompanying limiting statement, the fee schedule lists prices for various types of trades. Id. Immediately following this pricing, the second sub-heading reads “Complex Options.” Id. Both sub-headings, as well as all the other sub-headings in the Transactional Pricing section, are set in the same typeface, font, color and size, which could create the impression that each sub-heading refers to the pricing that follows immediately thereafter. Thus, a reasonable person could conclude that the special pricing for former Brown Company customers includes only those fees listed in the Transactional Pricing section, or only the Transaction Pricing and Margin Rates sections, as the prohibition on charging inactivity fees appears under the “Account Activity Fees” section. Id. (“No inactivity fees. E*TRADE Securities will not charge fees when your account is inactive for a period of time.”). However, a reasonable person could also conclude that the limiting statement applies to the entirety of plaintiffs’ fee schedule because the limiting language is an overarching substantive provision in plaintiffs’ fee schedule. This conclusion is strengthened if the main street investor schedule (“MSI fee schedule”), which authorizes E*Trade to charge the $40 dollar fee in question," }, { "docid": "16158788", "title": "", "text": "in this Note of blanks for angles, shapes or sections operated as a limited exception to the rule that unfinished or incomplete goods, having the essential character of the finished good, are classified in the same heading as the good. Certain Forgings, Doc. NC0317E1 at paras. 26-27. As this passage reveals, the Court’s interpretation is substantiated by the history of heading 7224, HTSUS, and concern of the drafters to create a workable and predictable standard and a nomenclature that appropriately represented commercial practices. Cummins objects to this analysis on multiple grounds: (1) that this reading turns the term “including” into a word of exclusion; (2) that the language is necessary to include blanks for angles, shapes or sections; and (3) that this construction would require reading “the terms of the chapter note out of order, and resort[ ] to GRI 2(a) to reach the question of whether an article is a blank.” The Court will address each objection in turn. First, Cummins claims that the Court’s reading undermines the general definition of “semifinished products” because Cum-mins’ crankshafts fall within the general definition of “semifinished products.” PL’s Resp. Ct.’s Quest, at 6, 9; but see infra at 28-32 (discussing why the crankshafts do not fall within the language of the preceding terms). This argument is similar to the argument advanced by the plaintiff, and rejected by the court, in Bauseh & Lomb v. United States, 148 F.3d 1363, 1366-67 (Fed.Cir.1998). In Bauseh & Lomb, the plaintiff argued that its battery-operated electric toothbrushes fell under heading 9603, HTSUS, covering “[b]rooms, brushes (including brushes constituting parts of machines, appliances or vehicles).” Although the court agreed that plaintiffs imports fell under the term “brushes,” it held that the subsequent “including” clause, i.e., “including brushes constituting parts of machines, appliances or vehicles,” limited the scope of the heading to only products meeting the description of that clause. Bauseh & Lomb, 148 F.3d at 1367. Similarly, even if Cummins were correct in arguing that its imports fell within the general description of the heading, the “including” language may, and in this case does, indicate that the" }, { "docid": "8135313", "title": "", "text": "United States v. Carlson, 9 Cir., 1980, 616 F.2d 446; Howard v. Dag-gett, 9 Cir., 1975, 526 F.2d 1388, 1390; see United States v. Kartman, 9 Cir., 1969, 417 F.2d 893. Moreover, importing or possessing heroin and importing or possessing marihuana carry different penalties. Both drugs are listed in Schedule I of 21 U.S.C. § 812. Heroin, a derivative of opium, is a “narcotic drug.” 21 U.S.C. § 802(16).' Marihuana is not. 21 U.S.C. § 802(15). Thus heroin is listed at Schedule I(b)(10) of § 812, while marihuana is listed at Schedule I(c)(10) of § 812. The penalties prescribed in 21 'U.S.C. §§ 841(b)(1)(A) and 960(b)(1) for narcotic drug offenses are far more severe than those for marihuana offenses, prescribed in §§ 841(b)(1)(B) and 960(b)(2). This lends some color to the argument. We think, however, that Lopez’s argument overlooks the framework of the statutes involved. In the case of unlawful importation, the applicable sections cited in the indictment are 21 U.S.C. §§ 952 and 960(b)(1). Section 952(a) makes it “unlawful to import ... any controlled substance in schedule I ... of subchapter I of this chapter.” Section 812 contains schedule I, in which both heroin and marihuana are listed, along with 79 other controlled substances. Section 960 first lists “Unlawful Acts.” Under that heading, it provides, in pertinent part: (a) Any person who— (1) contrary to section 952 ... knowingly or intentionally imports ... a controlled substance, shall be punished as provided in subsection (b) of this section. It next lists “Penalties.” Under that heading, it provides, in pertinent part: (b)(1) In the case of a violation under subsection (a) of this section with respect to a narcotic drug in schedule I ..., the person ... shall be imprisoned not more than fifteen years, or fined not more than $25,000, or both.... (2) In the case of a violation under subsection (a) of this section with respect to a controlled substance other than a narcotic drug in schedule I ..., the person ... shall be imprisoned not more than five years, or be fined not more than $15,000, or both...." }, { "docid": "23060910", "title": "", "text": "that has been left undecided by the jury. Pursuant to rule 31(e), the trial court submitted for jury determination the essential factual issues involved in the forfeiture under section 1963(a). The jury found that L’Hoste’s interest in R. J. L’Hoste & Company, Inc. was subject to forfeiture. Thus, the jury met the requirements of rule 31(e) by determining the extent of L’Hoste’s interest or property subject to forfeiture, and all that remained for the district court was to order forfeiture under section 1963. L’Hoste was not deprived of his right to a jury determination of the factual issues necessary for the court to order a forfeiture of his interest in his companies. Finally, L’Hoste asks this court to rule that the trial judge has the discretion under the Federal Probation Act, 18 U.S.C. § 3651-3656 (1976), to suspend the forfeiture. Under section 3651, a district court is given the power to suspend the imposition or execution of a sentence. The clear language of the statute allows the suspension of jail sentences and has been interpreted to allow the suspension of fines. United States v. Beacon Piece Dyeing & Finishing Co., 455 F.2d 216, 217 (2d Cir. 1972). As to forfeitures, however, the statute is silent. Again, neither we nor L’Hoste have been able to find any support for the proposition that section 3651 gives the district court the power to suspend the imposition or execution of a forfeiture. Moreover, the rationale that motivated Congress to reinstitute the forfeiture penalty indicates that it was enacted to serve a purpose other than that of a criminal sentence involving a fine or imprisonment. In consideration of the ineffectiveness of prior penalties in dislodging organized crime, Congress revived the penalty of criminal forfeiture to deprive those convicted of racketeering activity of their economic base so that they could not easily continue illegal activities. S.Rep. No. 91-617, 91st Cong., 1st Sess. at 79 (1969); see United States v. Rubin, 559 F.2d 975, 991 (5th Cir. 1977). Because of the difference between forfeiture and punishment by fine or imprisonment, and absent any indication that Congress intended" }, { "docid": "20938938", "title": "", "text": "to recover treble damages” under the Public Utilities Act of Ohio, now Secs. 614-1 to 614-68 G.C.O., and stated that plaintiff was seeking “punitive damages”. The section of the statute, § 6147-65, G.C.O., providing, in case of violation, for a fine of not less than $100 nor more than $1,000, or imprisonment for not more than two years, or both, for each day the offense continues, is headed “Penalty”, while Sec. 614-68, G.C.O. provides for the recovery of treble damages by the person injured in consequence of. the viqlation, stating that any recovery under that section “shall in no manner affect a recovery by the state for any penalty” provided in the Act, and is headed “Treble damages on violations”. Railroad cases: The statute involved in these cases provided, in case of overcharge for freight or passenger transportation, for the recovery of. double the amount of the overcharge but not less than $150. The case of Cincinnati S. & C. Railroad Co. v. Cook, 1881, 37 Ohio St. 265, 270, referred to the amount of recovery sought over the actual damage as being “in the nature of a penalty” and “punishment rather than compensation”; Railway Co. v. Furnace .Co., 1892, 49 Ohio St. 102, 115, 30 N.E. 616, which referred to the judgment as being for a “penalty” and, therefore, not entitled..to interest; Cleveland, C. & St. L. Railway Co. v. Wells, 1899, 61 Ohio St. 268, 270, 55 N.E. 827, which referred to the statute as. “highly penal”; Baltimore & O. Railroad Co. v. Hollenberger, 1907, 76 Ohio St. 177, 179, 81 N. E. 184, in which the Court dismissed an action to recover the overcharge, stating that the action was one to recover “a penalty” . and had not been filed in the County where the cause of action arose, the Ohio statute in effect at that time providing that an action to recover a penalty, with certain exceptions, had to be brought in the County where the cause of action arose; Pennsylvania Co. v. O’Connell, 84 Ohio St. 218, 95 N.E. 773, which referred to the action" }, { "docid": "8348941", "title": "", "text": "treatise also refers to the empowering nature of § 1123 of the Bankruptcy Code: The alternatives set forth in section 1123(a)(5) are self-executing. That is, the plan my propose such actions notwithstanding non-bankruptcy law or agreements.... if the plan provides for liquidation, merger, or issuance of stock, such actions are authorized under the Code and approval required under non-bankruptcy law is unnecessary. 5 Collier on Bankruptcy paragraph 1123.-01, at 1123-10 to 1123-11 (15th ed. 1988). See also 5 Collier on Bankruptcy paragraph 1123.02[4] (15th ed. 1988) (noting that 11 U.S.C. § 1123(b)(4), which permits a plan to provide for the sale of all or substantially all assets, “applies even if the debtor provides essential public service such as a utility or railroad.”). Contrary to the FCX decision, and the Collier discussion, the defendants make the argument that the section 1123 heading “Contents of Plan” should limit the otherwise clear meaning of the statute. This argument is not very persuasive due to the clarity of the text and the little case law available which suggests that titles cannot contradict the meaning of clear text. See Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947); Scarborough v. Office of Personnel Management, 723 F.2d 801 (11th Cir.1982); United States v. Carrillo-Colmenero, 523 F.2d 1279 (5th Cir.1975). As the Scarborough court stated: [Rjeliance on headings is not a favored method of statutory construction. Section headings cannot limit the plain meaning of the text and may be utilized to interpret a statute, if at all, only where the statute is ambiguous ... resort to statute headings to contradict plain language of the statute is inappropriate. Id. at 811-12. Moreover, since the language of Section 1123 is obviously intended to provide for plans that could go forward for confirmation subject only to the requirements of section 1129 — including the rate approval power of a state regulatory agency — it would be nonsensical to interpret Section 1123 to simply list what a plan may include but with the result that such a plan could not be" }, { "docid": "22875347", "title": "", "text": "emasculate an entire section.\") (Citations and quotations omitted.) Thus the words \"or for any other violation under this title\" can be neither judicially excised nor judicially ignored. Indeed, the legislative history shows the intent of Congress that states not be immune froth the federal laws governing intellectual property. Senate Report at 11. The University position is supported in the observation that the headings of 35 U.S.C. §8 271 and 296 mention only infringement. Headings are often helpful in interpreting an ambiguous text. Immigration and Naturalization Serv. v. National Ctr. for Immigrants' Rights, - U.S. -, 112 S.Ct. 551, 556, 116 L.Ed.2d 546 (1991). However, there is the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text. For interpretative purposes, they are of use only when they shed light on some ambiguous word or phrase.... But they cannot undo or limit that which the texi makes plain. Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 1391-92, 91 L.Ed. 1646 (1947) (citations omitted). The text of Public Law 102-560 is not ambiguous. The text does not contradict the section headings, although it is broader than the headings. Headings can not of themselves operate to take a significant portion of the textual subject matter out of the statute. It would be incorrect to apply these headings to nullify the clause \"or for any other violation under this title.\" The conclusion that Public Law 102-560 is not limited to infringement by the state is reinforced by the explicit statement, in each section of the enactment, that its purpose is to place the states in the same position as nongovernmental entities as to the patent law. 35 U.S.C. §8 271(h), 296(a) and (b). That purpose would not be achieved by the University's interpretation, for if the states were to continue to be immune from suit for violation of all provisions of Title 35 other than infringement, the states would not be coequal with nongovernmental entities. In introducing this legislation Senator DeConci-ni stressed that \"States" }, { "docid": "14547617", "title": "", "text": "of the United, States showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim accordingly. * * * [Italic added.] Based on the similarity of language between the t!wo provisions, plaintiff argues that section 3469 was the precursor of section 617 and therefore that the case law and administrative construction of section 3469 apply for the most part to section 617. As for case law, plaintiff relies on United States v. George, 25 F Cas. 1277 (C.C.S.D.N.Y. 1869) which, it says, supports its position that section 617 authorizes only the settlement of liquidated claims. In George, certain informers claimed entitlement to a portion of sums that were paid to the Government under a compromise agreement. The informers contended that the sums constituted fines or penalties in which they had a right to share. The Government on the other hand argued that since the funds were paid by way of compromise under section 10 of the Act of March 3, 1863, 12 Stat. 740 — which was a virtually identical predecessor provision to section 3469 — such funds were duties and that the informers therefore were not entitled to a share thereof. The court rejected the Government’s argu ent and held: (1) That the compromise had no legal effect on the character of the funds and (2) that a portion of the funds constituted fines or penalties in which the informers were entitled to share. Plaintiff emphasizes that the court in George added that section 10 “might well he held to confer no power in regard to claims not in suit.” 25 F. Cas. at 1279. But this statement was simply dictum which can scarcely be regarded as dispositive of the issue here. As for administrative construction, plaintiff relies upon various opinions of the Attorney General construing section 10 and its successor section 3469 in which the Attorney General concluded that" }, { "docid": "2250696", "title": "", "text": "cases. The doctrine of indispensableness and sovereign immunity are not so fixed as to be exempt from new interpretations and theories. . See, e. g., 2 C.Z.C. (1934 ed.) § 81(c). Section 3 of the Act of July 9, 1937, ch. 470, 50 Stat. 486. . Act of July 25, 1958, 72 Stat. 405 et seq. . 2 C.Z.C. §§ 141-156, 76A Stat. 16-20. . See also § 144 of Title 2. . Section 142 provides that each department head shall conduct wage practices in accordance with regulations promulgated by the President or his delegate. . “Such amounts as the head of the department concerned determines to be payable” in Section 146 refers to the allowances for taxes noted in § 146(1) and the differential noted in § 146(2). This quoted clause does not merely authorize the department heads to compute the basic compensation and add the appropriate tax allowance plus 25 percent as the appellees suggest. This suggestion implies that Section 146 permits the department head to perform no more than mechanical computations and that the word “determine” means compute. We reject this narrow interpretation of the section. . We agree with the appellant that if the Secretary’s interpretation of the statute is not unreasonable it should be adopted by the courts. Udall v. Tallman, 1965, 380 U.S. 1, 18, 85 S.Ct. 792, 13 L. Ed.2d 616. . “Mr. Hemphill. Mr. Speaker, I have asked for this time only for the purpose of clarifying one section of the bill and one part of the report. “Under Section 3 of the bill, item (b-1) on page 7, the President of the United States as administrative authority under the terms of this legislation, is authorized to exclude any employee or position from the act or provision of the act. I would like to read into the RECORD at this point a part of the able report made by the chairman of the subcommittee to the full committee. Page 3 of that report says: “Section 3 authorizes and directs the head of each department or agency operating in the Canal Zone to" }, { "docid": "5974697", "title": "", "text": "those opinions that limit the scope of § 7701(g)(1) to Chapter 77 appeals. In Dawson v. MSPB, 712 F.2d 264 (7th Cir.1983), petition for rehearing en banc denied, relied upon by the OPM in this case, the court held that Congress has not enacted any “explicit statutory language unequivocally waiving the sovereign immunity of the United States with respect to granting attorney’s fees to a litigant who is appealing a disability retirement decision of the [OPM].” After reviewing various statutory headings, the court apparently surmised that each subpart under Part III of Title 5 is a self-contained unit operating independently of the others. Hence, the Dawson court determined that retirement actions are governed solely by Chapter 83 of Subpart G, and that Chapter 77 of Sub-part F deals only with “labor-management and employee relations.” The court, therefore, reasoned that § 8347(d). exclusively governs all “civil service retirement” appeals arising “out of an OPM decision denying [an] application for civil service retirement disability benefits.... ” Id. at 268-69. Because Chapter 83 contains no attorney’s fees provision, the court concluded that the Board has no statutory authority to award attorney’s fees to disability retirement applicants. Id. at 269. See also Williams, supra, 718 F.2d at 1556-57. We decline to follow the Dawson court’s reasoning to its ultimate conclusion for several reasons. In the first place, Dawson’s reliance upon headings to determine the meaning of a statute is not a favored method of statutory construction. Section headings cannot limit the plain meaning of the text and may be utilized to interpret a statute, if at all, only where the statute is ambiguous. Brotherhood of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 529, 67 S.Ct. 1387, 1392, 91 L.Ed. 1646 (1947); Frazier v. MSPB, 672 F.2d 150, 160 (D.C.Cir.1983); United States v. Roemer, 514 F.2d 1377, 1380 (2d Cir.1975) (quoting Brotherhood). E.g., Russ v. Wilkins, 624 F.2d 914, 922 (9th Cir.1980); Tibke v. Immigration and Naturalization Service, 335 F.2d 42, 45 (2d Cir.1964); Motor Coach Industries, Inc. v. United States, 536 F.2d 930, 936, 210 Ct.Cl. 188 (1976). See Committee to" }, { "docid": "5974698", "title": "", "text": "the court concluded that the Board has no statutory authority to award attorney’s fees to disability retirement applicants. Id. at 269. See also Williams, supra, 718 F.2d at 1556-57. We decline to follow the Dawson court’s reasoning to its ultimate conclusion for several reasons. In the first place, Dawson’s reliance upon headings to determine the meaning of a statute is not a favored method of statutory construction. Section headings cannot limit the plain meaning of the text and may be utilized to interpret a statute, if at all, only where the statute is ambiguous. Brotherhood of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 529, 67 S.Ct. 1387, 1392, 91 L.Ed. 1646 (1947); Frazier v. MSPB, 672 F.2d 150, 160 (D.C.Cir.1983); United States v. Roemer, 514 F.2d 1377, 1380 (2d Cir.1975) (quoting Brotherhood). E.g., Russ v. Wilkins, 624 F.2d 914, 922 (9th Cir.1980); Tibke v. Immigration and Naturalization Service, 335 F.2d 42, 45 (2d Cir.1964); Motor Coach Industries, Inc. v. United States, 536 F.2d 930, 936, 210 Ct.Cl. 188 (1976). See Committee to Preserve Am. Color Television v. United States, 527 F.Supp. 341, 348 (C.I.T.1981). In Color Television, for example, the appellant urged the court to limit the Tariff Act’s broad statutory language, “any claim arising under the customs laws,” to “claims for fines, penalties and forfeitures.” In support of its argument, appellant referred the court to the statutory heading. The court, however, refused to resort to section headings, because the text was “not ambiguous.” Id. at 348. In the instant case, the statute involved presents equally unambiguous language. Just as the Tariff Act referred to “any claim,” 19 U.S.C. § 1617, the CSRA authorizes the MSPB to award attorney fees in “any ease” in which the agency’s action was clearly without merit. 5 U.S.C. § 7701(g)(1). Under these circumstances, resort to section headings to contradict the plain language of the statute is inappropriate. Brotherhood, supra; Frazier, supra. Apart from headings, Dawson relied on the placement of retirement matters in Subpart G and labor-management and employee relations in Subpart F to suggest that Chapter 83, of Subpart G," } ]

[ { "docid": "21008865", "title": "", "text": "Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1431 (3d Cir.1994) (real party in interest objection waived by failure to raise prior to trial); Wagner Furniture Interiors, Inc. v. Kemner’s Georgetown Manor, Inc., 929 F.2d 343, 346 (7th Cir.1991) (failure to plead objection to capacity is waiver); Gogolin & Stelter v. Karn’s Auto Imports, Inc., 886 F.2d 100, 102 (5th Cir.), cert. denied, 494 U.S. 1031, 110 S.Ct. 1480, 108 L.Ed.2d 617 (1990) (real party in interest objection waived by failure to raise prior to trial); Hefley v. Jones, 687 F.2d 1383, 1388 (10th Cir.1982) (real party in interest objection waived unless pleaded as affirmative defense); Chicago & Northwestern Transp. Co. v. Negus-Sweenie, Inc., 549 F.2d 47, 50 (7th Cir.1988) (same); Blau v. Lamb, 314 F.2d 618, 620 (2d Cir.), cert. denied, 375 U.S. 813, 84 S.Ct. 44, 11 L.Ed.2d 49 (1963) (same); Fox v. McGrath, 152 F.2d 616, 618 (2d Cir.1945), cert. denied, 327 U.S. 806, 66 S.Ct. 966, 90 L.Ed. 1030 (1946) (real party in interest defense freely waivable); 5 charles Alan Wright, Arthur R. Miller, Federal Practice and Procedure Civil 2d §§ 1294-95 (failure specifically to deny capacity to sue is waiver); 6A id. § 1554 (failure to raise real party in interest objection is waiver)" } ]

[ { "docid": "375500", "title": "", "text": "this basis as well. See Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. C. JOA’s motion for summary judgment on claims eleven and twelve-statute of repose, § 38-30-171, C.R.S. It is undisputed that on May 1,1992, defendant Scott Brown retired from the practice of law. Soon after, on August 7, 1992, the JOA law firm was legally dissolved. JOA MSJ, Ex. B. The JOA law firm seeks summary judgment on claims eleven and twelve as barred by the Colorado corporate statute of repose contained in § 38-30-171, C.R.S. In response, the Trustee argues that § 38-30-171 is inapplicable because Title 38, Article 30 applies to interests in real property, is not applicable to corporations generally, and is not part of the Colorado Corporation Code or the Colorado Business Corporation Act. I disagree. Section 38-30-171, C.R.S. provides: (1) This section shall apply to corporations for profit that were both formed under the laws of this state and dissolved before July 1, 1994, (2) The dissolution of a corporation shall not eliminate or impair any remedy available to or against the corporation or its directors, officers, or shareholders for any right or claim existing or any liability incurred prior to such dissolution if an action or other proceeding is commenced thereon within two years after the date of the dissolution. The foregoing limitation shall not apply to any action affecting title to real estate.... Section 38-30-171, C.R.S., (eff. June 1, 1996). The Colorado Corporation Code, including § 7-8-122 which provided a two-year period of repose, was repealed in 1993 and was replaced by the Colorado Business Corporation Act, effective July 1, 1994, which contains no provision addressing a period of repose. The Trustee argues that “if the General Assembly had intended to provide a two-year period of repose ..., then surely it would have included [it] in § 7-114-105(2) which states instead, that ‘[dissolution of a corporation does not ... (e) prevent commencement of a proceeding by or against the corporation in its corporate name.’ ” Resp. p. 2. However, the Trustee fails to provide authority, and I am unaware of any," }, { "docid": "7967788", "title": "", "text": "447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). . Am. Cpt. ¶ 20. There is no complete diversity because plaintiff First Capital Asset Management, Inc. and defendant Satinwood, Inc. are both Delaware corporations. See id. ¶¶ 1, 3. . The notice of motion indicated that the moving defendants were seeking an order, inter alia, \"dismissing all claims pursuant to Rule 12(b)(1) for lack of standing and subject matter jurisdiction.\" . Ohio Cas. Ins. Co. v. Mohan, 350 F.2d 54, 57 (3d Cir.1965); Sell v. Price, 527 F.Supp. 114, 117-18 (S.D.Ohio 1981). . See, e.g., Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir.1994); Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir.1988); Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2D § 1357, at 301 (1990) (\"Even if a party does not make a formal motion, the court on its own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair.”). . Plaintiffs fully addressed also the sufficiency of the claims against Afsar under Section 1962(c) and (d). . United. States v. Sabbeth, 262 F.3d 207, 212-13 (2d Cir.2001). . FCAM II, 218 F.Supp.2d at 385; see, e.g., First Capital Asset Mgmt., Inc. v. Brickelbush, Inc., 150 F.Supp.2d 624, 632-33 (S.D.N.Y.2001) (\"FCAM I\"); Browne v. Abdelhak, No. Civ. A. 98-6688, 2000 WL 1201889, at *8 (E.D.Pa. Aug.23, 2000); In re Sattler’s, Inc., 73 B.R. 780, 787 n. 7 (Bankr.S.D.N.Y.1987). . Nat’l Council of Young Israel v. Wolf, 963 F.Supp. 276, 281 (S.D.N.Y.1997). . Id. (quoting Spira v. Nick, 876 F.Supp. 553, 557 (S.D.N.Y.1995)). . Shields v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1128 (2d Cir.1994). . FCAM I, 150 F.Supp.2d at 632. . Am. Cpt. ¶ 57. . Id. ¶ 103. . Id. ¶¶ 74, 89. . See United States v. West," }, { "docid": "10317224", "title": "", "text": "defendants removed the case before Films and the LLC were dismissed, the removal may have been incurably invalid. See Vasura v. Acands, 84 F.Supp.2d 531, 538 (S.D.N.Y.2000) (\"It is not relevant in determining the propriety of removal — which is measured as of the date of removal — that diversity was later created by dismissal of the non-diverse defendant.”); Wamp v. Chattanooga Hous. Auth., 384 F.Supp. 251, 253 (E.D.Tenn.1974) (\"[Developments in the lawsuit ... subsequent to removal can not serve to confer federal court jurisdiction if none in fact existed as of the time of removal.”), aff'd on other grounds, 527 F.2d 595 (6th Cir.1975). But see Caterpillar, 519 U.S. at 73, 117 S.Ct. 467 (noting that the district court's lack of jurisdiction at the time of removal \"remain[s] in the [u]nerasable history of the case” but held that remand was not required where final judgment had already been entered); 14B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3723, at 588 (\"The somewhat more contentious and as yet undefined doctrine has emerged that even though removal may have been improper due to a lack of diversity of citizenship at the time of removal, if the defect subsequently is cured before it is noticed, the federal court has subject matter jurisdiction to enter judgment.”). . Section 1312(a) of the New York Business Corporation Law provides in pertinent part that \"[a] foreign corporation doing business in this state without authority shall not maintain any action or special proceeding in this state unless and until such corporation has been authorized to do business in this state.” The statute applies both to state courts and to federal courts whose jurisdiction is grounded in diversity of citizenship. See Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949); Virgilio Flores, S.A. v. Jerome Radelman, Inc., 567 F.Supp. 577, 579 (E.D.N.Y.1982). . See, e.g., Dixie Dinettes, Inc. v. Schaller’s Furniture, Inc., 11 Misc.2d 102, 335 N.Y.S.2d 632, 637 (1972) (noting that the dismissal of a claim for failure to comply with Section 3212 was granted \"without prejudice” to" }, { "docid": "22285043", "title": "", "text": "bearing directly on the point are from tribunals not high in the judicial hierarchy and may be susceptible of distinction, they at least reveal that the New York courts do not consider § 115 a clear mandate against limited partners’ capacity to bring an action like this. Cooper Prods. Co. v. Twin-Bowl Co., N.Y.L.J., Aug. 21, 1962, p. 8, col. 7 (Sup.Ct.); Executive Hotel Associates v. Elm Hotel Corp., 41 Misc.2d 354, 245 N.Y.S.2d 929 (Civ.Ct.), aff’d per curiam, 43 Misc.2d 153, 250 N.Y.S. 351 (App.T.1964); and the only relevant statement by the Court of Appeals that has been cited to us, see Ruzicka v. Rager, supra, although in no way decisive since the issue was hardly in the court’s mind, is helpful to appellants. If New York returns only a murky answer to the question of capacity posed by F.R.Civ.P. 17(b), federal judges are entitled to resolve the doubt in a way that permits the assertion of a federal claim. See Leh v. General Petroleum Corp., supra, 165 F.Supp. at 937; Blake, The Shareholders’ Role in Antitrust Enforcement, 110 U.Pa.L.Rev. 143, 145-52 (1961). Contrast Alley v. Clark, supra, 71 F.Supp. at 525. The district judge was influenced to a contrary view by the limited partner’s right to have a “dissolution and winding up by decree of court,” N.Y. Partnership Law § 99, presumably for the same causes as a general partner, § 63, in which the court may, in its discretion, appoint a receiver. But we see no reason why such possibilities should prevent the speedier and more effective remedy of suit by a limited partner, any more than' the beneficiary’s right to ask that a trustee be instructed or removed prevents suit by him when the trustee has wrongfully refused. We would indeed expect that the New York courts would require strong allegations and proof of disqualification or wrongful refusal by the general partners before allowing a limited partner to sue on the partnership’s behalf — a mere difference of opinion would be nowhere near enough. Compare Coast v. Hunt Oil Co., supra, 195 F.2d at 872. But" }, { "docid": "22173788", "title": "", "text": "this rule: [Although an objection to a party’s capacity is not an affirmative defense, it can be analogized to an affirmative defense and treated as waived if not asserted by motion or responsive pleading, subject, of course, to the liberal amendment policy of Rule 15. Early waiver is necessary to give meaning to the requirement in Rule 9(a) that capacity must be put in issue by a “specific negative averment.” 5 Wright & Miller, FED. PRAC. & PROC. CIV.2d § 1295; see also Wagner Furniture Interiors, Inc. v. Kemner’s Georgetown Manor, Inc., 929 F.2d 343, 345 (7th Cir.1991) (holding that averment was untimely because it was raised in a motion to dismiss at the final pre-trial conference); MTO Maritime Transp. Overseas, Inc. v. McLendon Forwarding Co., 837 F.2d 215, 218 (5th Cir.1988) (finding that the capacity issue was waived because the defendant did not raise it “until the eve of trial in the Joint Pre-Trial Order”). Similarly, if the motion in limine is construed as a motion to amend the pleadings, the district court did not abuse its discretion in denying it as untimely. While “leave [to amend a pleading] shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a), a district court may deny the motion if it will cause unfair delay. See Parker v. Joe Lujan Enterprises, 848 F.2d 118, 121 (9th Cir.1988); McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809 (9th Cir.1988). “Where the party seeking amendment knows or should know of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend may be denied.” Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir.), vacated on other grounds, 459 U.S. 810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982), on remand, 713 F.2d 503 (9th Cir.1983), opinion amended, 726 F.2d 1366 (9th Cir.1984). Defendants did not raise the authority to sue issue until one week before the trial was scheduled to begin. None of defendants made a “specific negative averment” in their answers, moved to amend their answers, or filed a motion" }, { "docid": "10317225", "title": "", "text": "that even though removal may have been improper due to a lack of diversity of citizenship at the time of removal, if the defect subsequently is cured before it is noticed, the federal court has subject matter jurisdiction to enter judgment.”). . Section 1312(a) of the New York Business Corporation Law provides in pertinent part that \"[a] foreign corporation doing business in this state without authority shall not maintain any action or special proceeding in this state unless and until such corporation has been authorized to do business in this state.” The statute applies both to state courts and to federal courts whose jurisdiction is grounded in diversity of citizenship. See Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949); Virgilio Flores, S.A. v. Jerome Radelman, Inc., 567 F.Supp. 577, 579 (E.D.N.Y.1982). . See, e.g., Dixie Dinettes, Inc. v. Schaller’s Furniture, Inc., 11 Misc.2d 102, 335 N.Y.S.2d 632, 637 (1972) (noting that the dismissal of a claim for failure to comply with Section 3212 was granted \"without prejudice” to its \"renew[al]”). . First announced in Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and later affirmed in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the Rooker-Feldman doctrine \"holds that, among federal courts, only the Supreme Court has subject matter jurisdiction to review state court judgments.” Johnson v. Smithsonian Inst., 189 F.3d 180, 185 (2d Cir.1999). . Nasso also presents no authority for his argument that reconsideration of an order entered by the state court would deny it the \"full faith and credit” required by 28 U.S.C. § 1738. In reviewing the interlocutory orders of state courts, however, federal courts give those orders the same substantive effect that they would have enjoyed had the action not been removed. The federal court \"takes the case up where the State court left it off.” Granny Goose Foods, Inc., 415 U.S. at 436, 94 S.Ct. 1113 (internal quotation marks omitted). . Nasso cites three cases from the nineteenth century in" }, { "docid": "11099333", "title": "", "text": "motion to dismiss for lack of jurisdiction. The moving party is not asking that it be given a chance to defend on the merits; it is questioning the court’s ability to require it to do so. If the district court finds itself without jurisdiction based upon the movant’s 60(b) presentation, then it is obligated to dismiss the ease because it has no authority over the defendant. The default judgment is void. In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F.3d 755, 763 (7th Cir.1994) (stating that lack of personal jurisdiction nullifies a judgment). If the court finds otherwise, the defaulted party can appeal the denial of Rule 60(b) relief, and we are obligated to vacate the default judgment as a per se abuse of discretion if we find it void for lack of jurisdiction. Bally Export Corp., 804 F.2d at 400. C While this circuit has not addressed the precise issue, there is no logical basis for different treatment of the capacity issues addressed in Rules 9(a) and 17(b) of the Federal Rules of Civil Procedure. Questions involving a party’s capacity to sue or be sued will likewise turn upon issues of fact — issues properly allocated to the forum of the district court. Like questions pertaining to personal jurisdiction, those involving capacity must therefore be identified in either a responsive pleading or motion. Fed.R.Civ.P. 9(a). Failure to raise capacity in a responsive pleading amounts to forfeiture of that right. Wagner Furniture Interiors, Inc. v. Kemner’s Georgetown Manor, Inc., 929 F.2d 343, 345 (7th Cir.1991). The Wagner court premised its holding upon the requirement in Rule 9(a) that capacity must be plead by “specific negative averment” and the harmonious interpretations of that language employed by several other circuits. Id. (collecting cases). The pleading requirements for capacity thus correspond to those for personal jurisdiction. The forfeiture rule for capacity parallels the rule embodied in Fed.R.Civ.P. 12(h) regarding personal jurisdiction, and we now recognize its logical extension to correspond with the rule we previously announced in O’Brien, Lowery, and State Exchange Finance Corp. A party must aver any issues of" }, { "docid": "404031", "title": "", "text": "extraneous material may be considered, other Rule 12(b) motions need not be converted for a court to look beyond the pleadings. See, e.g., Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). The fact that a corporation has ceased to exist does not necessarily mean that the corporation cannot be sued. New York law provides that “[a dissolved] corporation may sue or be sued in all courts and participate in actions and proceedings ... and process may be served by or upon it.” New York Business Corporation Law § 1006(a)(4) (McKinney 1986). Further, “The dissolution of a corporation shall not affect any remedy available to or against such corporation, its directors, officers, or shareholders for any right or claim existing or any liability incurred before such dissolution,” with certain inapposite exceptions. Id. at § 1006(b) (emphasis added); see Flute v. Rubel, 682 F.Supp. 184, 187 (S.D.N.Y.1988) (Sweet, J.) (citing Rodgers v. Logan, 121 A.D.2d 250, 503 N.Y.S.2d 36 (1st Dep’t 1986) (citing cases)); Independent Investor Protective League v. Time, Inc., 50 N.Y.2d 259, 428 N.Y.S.2d 671, 406 N.E.2d 486 (1980). Indeed, a dissolved corporation can be served. Yet despite the fact that a dissolved corporation could be subject to this Court’s jurisdiction, Seasons Four is not so in this action. The allegations of Plaintiffs with regard to Seasons Four involved actions taken subsequent to its dissolution. As a result, although certain underlying acts may have been taken by the corporation — specifically, the contract entered into by Seasons Four— the allegations here involve actions taken after the expiration of the first term in 1993. Thus, Seasons Four cannot be reached under the long-arm statute. For these reasons, the motion will be granted with respect to Seasons Four. The Motion to Dismiss for Lack of Jurisdiction Will Be Denied as to Valli and Gaudio Plaintiffs’ Amended Complaint does not make clear whether its allegations against Valli and Gaudio are in their capacity as individuals, as general partners of the Partnership, or as individual successors-in-interest to Seasons Four. Assuming for the moment that Valli and Gaudio do possess" }, { "docid": "404030", "title": "", "text": "all of the assets of Seasons Four to the Partnership. Moreover, Moving Defendants have submitted a certificate of dissolution from the New York Secretary of State, indicating that Seasons Four was a New York corporation and was dissolved in 1979. Plaintiffs in their brief appear to concede the dissolution of Seasons Four in the context of arguing that the Partnership constitutes a successor-in-interest to Seasons Four. Even construing the facts from the pleadings and affidavits in the light most favorable to the plaintiff, Hoffritz, 763 F.2d at 57, we must conclude that Seasons Four no longer exists. This conclusion does arise from material outside the pleadings. However, it is well-settled that extraneous matter may be used in conjunction with defenses raised under Rule 12(b). See Central Mexico Light & Power Co. v. Munch, 116 F.2d 85 (2d Cir.1940). 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, § 1364, at 468-69 (1990). Unlike motions made under Rule 12(b)(6), which must be converted by a court into a motion for summary judgment before extraneous material may be considered, other Rule 12(b) motions need not be converted for a court to look beyond the pleadings. See, e.g., Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). The fact that a corporation has ceased to exist does not necessarily mean that the corporation cannot be sued. New York law provides that “[a dissolved] corporation may sue or be sued in all courts and participate in actions and proceedings ... and process may be served by or upon it.” New York Business Corporation Law § 1006(a)(4) (McKinney 1986). Further, “The dissolution of a corporation shall not affect any remedy available to or against such corporation, its directors, officers, or shareholders for any right or claim existing or any liability incurred before such dissolution,” with certain inapposite exceptions. Id. at § 1006(b) (emphasis added); see Flute v. Rubel, 682 F.Supp. 184, 187 (S.D.N.Y.1988) (Sweet, J.) (citing Rodgers v. Logan, 121 A.D.2d 250, 503 N.Y.S.2d 36 (1st Dep’t 1986) (citing cases)); Independent Investor Protective League v. Time, Inc., 50" }, { "docid": "706479", "title": "", "text": "its home jurisdiction. Great White Whale Advertising, Inc. v. First Festival Productions, 81 A.D.2d 704, 706, 438 N.Y.S.2d 655, 658 (1981). The defendant seeking to invoke section 1312(a) to terminate a suit by its adversary bears the burden of establishing that the plaintiff has not met the section’s requirements. Textile Banking Co. v. Colonial Chemical Corp., 285 F.Supp. 824, 828 (N.D.Ga.1969); Dixie Dinettes, Inc. v. Schaller’s Furniture, Inc., 71 Misc.2d 102, 103, 335 N.Y.S.2d 632, 635 (App.Div.1972). Determinations of doing business must be made on a case-by-case basis. Conklin Limestone Co. v. Linden, 22 A.D.2d 63, 64, 253 N.Y.S.2d 578, 580 (1964). In claiming that plaintiff is doing business under section 1312(a), defendants point to the following factors: (1) plaintiff has continuously received a substantial portion of its income from royalties generated by licensings by defendants, (2) plaintiff has sought to enhance its income through an audit of defendants conducted by Solomon & Finger and supervised by Frederick Schneier of plaintiff’s sister company, Hem-dale Leisure; and (3) plaintiff continuously sought to mount a first-class production of the play in New York from 1977 through Schneier and Hemdale U.K., whose execufive directors, Daly and Dawson, are also directors of plaintiff. Plaintiff responds that (1) defendants cannot attribute their own acts to plaintiff in order to show that plaintiff has been doing, business in New York; (2) actions taken to enforce contractual rights and actions taken in anticipation of or in preparation for litigation are not doing business; and (3) the negotiations for a first-class production of the play do not amount to doing business, and if they do, they were conducted by Hemdale U.K., which holds the rights to such productions. Putting to the side defendants’ activity in New York in sublicensing the play, plaintiff’s activities in the state do not constitute doing business. Defendant must show that plaintiff has “maintained and carried on a regular and continuous course of business conduct in New York.” Manhattan Fuel Co. v. New England Petroleum Corp., 422 F.Supp. 797, 801 (S.D.N.Y.1976), aff’d, 578 F.2d 1368 (2d Cir. 1978) (Duffy, J.); see Stafford-Higgins Industries, Inc." }, { "docid": "5957094", "title": "", "text": "in paragraphs 102 through 127, do not suggest that she had any contacts with New York in connection with these claims. Accordingly, Section 302, which provides for specific jurisdiction, has no application to these claims. Therefore, despite the focus on the RICO claims in the body of the opinion, all claims against Afsar are dismissed for lack of personal jurisdiction. . PL Mem. 45. . Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 198, 522 N.E.2d 40. . Id. . Pieczenik v. Dyax Corp., No. 00 Civ. 243(HB), 2000 WL 959753, at *4 (S.D.N.Y. July 11, 2000), aff’d, 265 F.3d 1329 (Fed.Cir.2001). . Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 199, 522 N.E.2d 40; see also Retail Software Servs., Inc. v. Lashlee, 854 F.2d 18, 22 (2d Cir.1988) (\"Kreutter thus resolves the issue of whether a corporation can act as an agent for an individual for purposes of § 302(a)(1).”). . See Grove Press, 649 F.2d at 122; Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 199, 522 N.E.2d 40. . See Berry Decl. Ex. 22, McRory Dep. 166. . See id. Ex. 24. . Berry Aff. Ex. 20. . 4A Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure: Civil 3D § 1069.7 (2002) (emphasis added) [hereinafter Wright & Miller 3D]; see Anglo Am. Ins. Group, P.L.C. v. CalFed Inc., 916 F.Supp. 1324, 1332 n. 17 (S.D.N.Y.1996). . See Pieczenik, 2000 WL 959753, at *4 (citing Beacon Enter., Inc. v. Menzies, 715 F.2d 757, 764 (2d Cir.1983), in turn citing McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321. 52 N.Y.2d 268, 437 N.Y.S.2d 643, 645, 419 N.E.2d 321 (1981)). . See PL Mem. 44-45 (indicating that the acts of Brickellbush, Satinwood, Sphinx Rock, and Faily in connection with the Timberland & Tiburón Transaction would give the Court long-arm jurisdiction “on the First and Second pendent state law claims”). . Am. Cpt. ¶ 167. . Id. ¶ 173 (“At the January 16, 1997 meeting, Sohrab, Ahmed, Afsar and Schlegelmilch agreed to assist Sohrab's efforts in concealing from plaintiffs the fact that Sohrab" }, { "docid": "375501", "title": "", "text": "to or against the corporation or its directors, officers, or shareholders for any right or claim existing or any liability incurred prior to such dissolution if an action or other proceeding is commenced thereon within two years after the date of the dissolution. The foregoing limitation shall not apply to any action affecting title to real estate.... Section 38-30-171, C.R.S., (eff. June 1, 1996). The Colorado Corporation Code, including § 7-8-122 which provided a two-year period of repose, was repealed in 1993 and was replaced by the Colorado Business Corporation Act, effective July 1, 1994, which contains no provision addressing a period of repose. The Trustee argues that “if the General Assembly had intended to provide a two-year period of repose ..., then surely it would have included [it] in § 7-114-105(2) which states instead, that ‘[dissolution of a corporation does not ... (e) prevent commencement of a proceeding by or against the corporation in its corporate name.’ ” Resp. p. 2. However, the Trustee fails to provide authority, and I am unaware of any, for the proposition that the mere location of a statutory provision within a series of statutes renders it inapplicable to other pertinent provisions. Indeed, under the doctrine of in para mate-ria, the opposite is true. The doctrine of in pari materia requires statutes relating to the same subject matter to be construed together to fully effectuate the legislative intent. Walgreen Co. v. Charnes, 819 P.2d 1039, 1043 (Colo.1991). Statutes in pari materia should be construed together and harmonized if possible. City of Lakewood v. Mavromatis, 817 P.2d 90, 96 (Colo.1991). Under this doctrine, I should attempt to reconcile such statutes so as to give effect to all the provisions of each statute. M.S. v. People, 812 P.2d 632, 637 (Colo.1991). If construction in pari materia leads to irreconcilable inconsistency, the later and more specific statute usually controls the earlier and more general. Hellon & Associates, Inc. v. Phoenix Resort Corp., 958 F.2d 295, 297 (9th Cir.1992). Regardless of the priority of enactment, a specific statute should not be deemed to be controlled or nullified by" }, { "docid": "22173787", "title": "", "text": "jury verdict. At that stage, the propriety of the district court’s denial of the summary judgment motion is an “academic question.” See General Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1506 (9th Cir.1995); Lum v. City & County of Honolulu, 963 F.2d 1167, 1169 (9th Cir.1992); Lama v. Borras, 16 F.3d 473, 477 n. 5 (1st Cir.1994) (collecting cases). We see no reason to treat any differently the denial of defendants’ motion in limine to dismiss for lack of authority to sue. Even if we were to review the denial of the motion in limine directly, we would agree with the district court that defendants waived any objection to plaintiffs authorization to sue. A defendant must challenge a plaintiffs authority to sue by making a “specific negative averment.” See FED. R. CIV. P. 9(a). Case law in this circuit states that the “specific negative averment” must be made “in the responsive pleading or by motion before pleading.” Summers v. Interstate Tractor & Equip. Co., 466 F.2d 42, 49-50 (9th Cir.1972). Other authorities support this rule: [Although an objection to a party’s capacity is not an affirmative defense, it can be analogized to an affirmative defense and treated as waived if not asserted by motion or responsive pleading, subject, of course, to the liberal amendment policy of Rule 15. Early waiver is necessary to give meaning to the requirement in Rule 9(a) that capacity must be put in issue by a “specific negative averment.” 5 Wright & Miller, FED. PRAC. & PROC. CIV.2d § 1295; see also Wagner Furniture Interiors, Inc. v. Kemner’s Georgetown Manor, Inc., 929 F.2d 343, 345 (7th Cir.1991) (holding that averment was untimely because it was raised in a motion to dismiss at the final pre-trial conference); MTO Maritime Transp. Overseas, Inc. v. McLendon Forwarding Co., 837 F.2d 215, 218 (5th Cir.1988) (finding that the capacity issue was waived because the defendant did not raise it “until the eve of trial in the Joint Pre-Trial Order”). Similarly, if the motion in limine is construed as a motion to amend the pleadings, the district court did" }, { "docid": "4790859", "title": "", "text": "290 N.Y.S.2d 721, 237 N.E.2d 868 (1968). .Niles, Conditional Limitations and Leases in New York, 11 N.Y.U.L.Rev. 15 (1933). . See, § 711 of the New York Real Property Actions and Proceedings Law. . Beach v. Nixon, 9 N.Y. 35. . Matter of Guaranty Building Company, 52 App.Div. 140, 64 N.Y.S. 1056 (4th Dep’t 1900); Janes v. Paddell, 67 Misc. 420, 122 N.Y.S. 760 (Sup.Ct.App.T.1910); Riesenfeld, Inc. v. R-W Realty Co., Inc., 223 App.Div. 140, 228 N.Y.S. 145 (1st Dep’t 1928). . Riesenfeld, Inc. v. R-W Realty Co., supra. . Niles, 11 N.Y.U.L.Rev. 15, supra, at 26. . Ehret Holding Corp. v. Anderson Galleries, Inc., 138 Misc. 722, 247 N.Y.S. 235, aff'd, 235 App.Div. 781, 256 N.Y.S. 978; Martin v. Cross-ley, supra. . Compare, Sagson Co. v. J. Leonard Weiss, 83 Misc.2d 806, 374 N.Y.S.2d 88 (Sup.Ct.App.T. 1st Dep’t 1975) (Finding of waiver despite express provision in the apartment lease that acceptance of rent with knowledge of a breached covenant was not to be deemed a waiver). . See, Rose and Crown, Ltd. v. Shaw Enterprises, Inc., 28 Md.App. 548, 557, 346 A.2d 459, 464 (Ct.Spec.App.1975). . See, In re Wil-low Cafeterias, Inc., supra, at 309. . The record does not lead this Court to a conclusion as found in Lewis v. Clothes Shack, Inc., 62 Misc.2d 767, 770, 309 N.Y.S.2d 513 (Civ.Ct. City of N.Y. Trial T. N.Y.Co.1970), reversed, 67 Misc.2d 621, 322 N.Y.S.2d 738 (Sup. Ct.App.T. 1st Dep’t 1971) (“all the acts of the landlord in this case indicate an intention to enforce the lease provision”; “Throughout the landlord insisted that the tenant cure the violation”), or in Foureal Company v. National Molding Corporation, 74 Misc.2d 316, 318, 344 N.Y.S.2d 598 (2nd Dist. Ct. Suffolk Co. 1973) (“Here the tenant had every reason to believe that the landlord would not be likely to overlook a breach, but would rather pounce upon any opportunity to lawfully terminate the lease.”) . Compare, Rosenthal v. National Life Insurance Company, 486 F.Supp. 1018, 1023 (S.D.N.Y.1980) (elements of estoppel defense asserted against federal claim). . See, Graf v. Hope Building Corporation, 254 N.Y." }, { "docid": "5008113", "title": "", "text": "is sitting. Joseph Muller Corp. Zurich v. Societe Anonyme de Gerance et D’Armement, 314 F.Supp. 439, 441 (S.D.N.Y.1970), aff’d in part, rev’d in part on other grounds, 451 F.2d 727 (2d Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972). The cases cited by the plaintiff refute the idea of “general capacity” and support instead the proposition that once state law is interpreted to determine that a corporation has capacity to be sued, the actual place of suit is irrelevant. Therefore, when turning to Delaware law, the appropriate inquiry is the capacity to be sued of a voluntarily dissolved Delaware corporation which has failed to surrender its certificate of authority to do business in New York and which is continuing to “wind up” its business after the three-year period provided in the Delaware corporation law for asserting claims against the corporation. DELAWARE LAW Since RAC was originally incorporated in Delaware, its capacity to be sued is governed by the law of that state. At common law, the dissolution of a corporation was its civil death; dissolution abated all pending actions by and against a corporation, thus terminating abruptly its capacity to sue and be sued. Melrose Distillers, Inc. v. United States, 359 U.S. 271, 272, 79 S.Ct. 763, 3 L.Ed.2d 800 (1959); Note, Suits By and Against Dissolved Corporations, 48 Iowa L.Rev. 1006 (1963). In order to alter the common law and prolong the life of a corporation past dissolution, statutory authority is necessary, Oklahoma Gas Co. v. Oklahoma, 273 U.S. 257, 259, 47 S.Ct. 391, 71 L.Ed. 634 (1927); Johnson v. RAC Corp., 491 F.2d 510, 511-12 n. 3 (4th Cir. 1974). The common law has been supplanted in Delaware, as in all states, by a statute which prolongs the life of a corporation in order to allow the corporation to dispose of its affairs in an orderly fashion. Section 278 of the Delaware Corporation Law, 8 Del.Code Ann. § 278 (1975), which provides for the continued limited existence of a corporation after dissolution, reads in part: 278. Continuation of corporation after dissolution for" }, { "docid": "4919248", "title": "", "text": "York, 326 U.S. at 110, 65 S.Ct. at 1470. . Hanna v. Plumer, 380 U.S. at 468, 85 S.Ct. at 1142. See also “Myth,” supra note 15, at 713. . “Myth,” supra note 15, at 713. . In Hanna v. Plumer, the Court found that the difference between the state and federal rules as to service of summons and complaint (delivery at personal residence versus delivery in hand) “would be of scant, if any, relevance to the choice of a forum.” 380 U.S. at 469, 85 S.Ct. at 1143. . See 8 J. Weinstein, H. Korn & A. Miller, New York Civil Practice ¶ 8501.07 at 85-17 to 18 (1964): Although Article 85 does not create ‘a new liability,’ inasmuch as an unsuccessful plaintiff would have to pay costs even in its absence, Article 85 does represent a value judgment by the New York State Legislature that defendants must be protected against certain classes of plaintiffs and this judgment should not be ignored. . See 4A McKinney’s Forms, CPLR § 12.384 (1977) (“The object of requiring security for costs is to assure the defendant that in the event he is successful he will have an available party within the jurisdiction for collection of costs, and to protect a party from the harassment of groundless suits.”). See also Dixie Dinettes, Inc. v. Schaller’s Furniture, 71 Misc.2d 102, 335 N.Y.S.2d 632 (Kings Co. 1972); Wolf v. Atkinson, 182 Misc. 675, 49 N.Y.S.2d 703 (New York Co. 1944). . Walker v. Armco Steel Corp., 446 U.S. 740, 751, 100 S.Ct. 1978, 1985, 64 L.Ed.2d 659 (1980). . 337 U.S. at 555, 69 S.Ct. at 1229. . The Cohen Court held that the New Jersey statute “creates a new liability ... for it makes a stockholder who institutes a derivative action liable for the expense to which he puts the corporation and other defendants, if he does not make good his claims. Such liability is not usual and it goes beyond payment of what we know as ‘costs.’ ” Id That language was quoted in Moore’s Federal Practice, supra note 21, as justification for" }, { "docid": "16286941", "title": "", "text": "seven years, involved complex securities fraud issues, and involved thousands of documents and filings. Furthermore, our “cursory review” of the fees reflect that the invoices were being paid by an RK employee, and we have previously stated that “the best evidence of whether attorney’s fees are reasonable is whether a party has paid them.” Cintas Corp., 517 F.3d at 469. Given Dr. See’s failure to raise specific objections to RK’s attorneys’ fees and mindful of the district court’s “superior understanding of the litigation,” we find the district court did not abuse its discretion in awarding RK the full amount of fees requested. III. CONCLUSION We Affirm the magistrate judge’s decision. . Throughout this opinion, we refer to Robert Krilich as Krilich and his son as Krilich, Jr. . Dr. See also makes a cursory argument that RK lacked the capacity to sue, and claims that a capacity to sue defense cannot be waived. The Federal Rules of Civil Procedure however, clearly state that capacity to sue must be raised in a specific denial in an appropriate pleading or amendment. Fed.R.Civ.P. 9(a); see Wagner Furniture Interiors, Inc. v. Kemner's Georgetown Manor, Inc., 929 F.2d 343, 345-46 (7th Cir.1991). While we briefly note that Illinois law (which governs capacity to sue here) allows an unregistered \"doing business as” entity to sue and be sued, Thompson v. Cadillac, 187 Ill.App.3d 104, 135 Ill.Dec. 73, 543 N.E.2d 308, 310 (1989), we do not reach the merits of this claim as we find that Dr. See has waived the argument that RK lacked the capacity to sue because he failed to raise it in his pleadings. . In response to questions about RK, Krilich testified that his business entity was set up by a man named in the transcripts as \"Edward Bartolli,” who he claimed was a Harvard University professor. During the course of litigation, Dr. See submitted no evidence or discovery requests on this matter, and we express no opinion as to the legitimacy of RK as an investment vehicle." }, { "docid": "581646", "title": "", "text": "a representative of an estate whose decedent was domiciled outside the United States. See Rule 17(b), F.R.Civ.P. (capacity of an individual to sue or be sued in a representative capacity shall be determined by the law of the state in which the district court sits). Rule 9(a), F.R.Civ.P., which governs the capacity of a party to sue or be sued, provides in pertinent part: When a party desires to raise an issue as to the legal existence of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include supporting particulars as are peculiarly within the pleader’s knowledge. Under the Rule, if the defense is not raised in a timely manner, i.e. at the outset of a lawsuit, it is waived. See 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1295 (1990); see also Wagner Furniture Interiors, Inc. v. Kemner’s Georgetown Manor, Inc., 929 F.2d 343 (7th Cir.1991) (defendant waived right to use capacity defense in motion to dismiss first amended complaint because of failure to timely raise capacity issue in direct negative averment); Windboume v. Eastern Air Lines, Inc., 479 F.Supp. 1130, 1155 (E.D.N.Y. 1979), rev’d on other grounds, 632 F.2d 219 (2d Cir.1980) (lack of capacity defense waived if not raised in answer). Pena argues that Pressman waived the capacity defense by waiting more than seven years before raising it. Pressman, on the other hand, contends that he did raise this issue in his answer to Pena’s amended complaint and in communications between counsel. (Larsen Aff. ¶ 2.) Notwithstanding any reference to ancillary proceedings which may have been made during the course of these proceedings, the only time that Pressman formally raised anything resembling a lack of capacity defense was in his answer to Pena’s amended complaint, where he stated that plaintiff did not have the “requisite legal standing to bring the instant suit.” (Pressman Am. Answer at 9.) Even accepting Pressman’s assertion" }, { "docid": "4506519", "title": "", "text": "Insurance Law § 2601 provides that “[n]o insurer doing business in [New York] shall engage in unfair claim settlement practices.” N.Y.Insurance Law § 2601 (McKinney Supp.1994). Unfair business practices, by definition, must be committed “without just cause” and “with such frequency as to indicate a general business practice[.]” Id. Acknowledging a split among the lower courts, the New York Court of Appeals has recently held that New York law does not currently recognize a private cause of action under § 2601. Rocanova v. Equitable Life Assurance Soc’y of the United States, 83 N.Y.2d 603, 612 N.Y.S.2d 339, 343, 634 N.E.2d 940, 944 (1994) (citations omitted). The Trust’s reference to § 2601 is therefore dismissed. The Clubs also object to the Trust’s claim under New York General Business Law § 349(a). The Clubs argue that § 349 is a consumer fraud protection statute inapplicable to disputes among sophisticated corporate entities. We disagree. Section 349(a) provides that “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” New York General Business Law § 349(a) (McKinney Supp.1994). The statute is enforceable by both the attorney general and any person injured by a deceptive act committed by a business. Id. at §§ 349(b), 349(h). The statute contains no exceptions and no exemptions applicable to other regulated industries. The Second Circuit has held that § 349 applies to every business operating in New York, including insurance companies. Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 52 (2d Cir.1992). We find little merit in the Clubs’ assertion that a corporate entity cannot assert a claim under § 349. Rather, most courts have held that § 349 applies when one business sues another business if the plaintiff-business acted as a consumer of the defendant-business’s products or services. See, e.g., Sehroders, Inc. v. Hogan Sys., Inc., 137 Misc.2d 738, 742, 522 N.Y.S.2d 404, 406 (N.Y.Sup.Ct.1987) (holding that corporate consumer has standing to assert a claim under § 349); Sulner v. General Accident Fire and Life Assurance. Corp., Ltd., 122" }, { "docid": "706478", "title": "", "text": "Fredericks met another producer, Ron Delsener, in New York sometime in 1980. Finally, some negotiations in 1981 resulted in the signing of a contract between Hemdale U.K. and Oliver III Production Company, a limited partnership unconnected with The Hemdale Film Group Ltd. Although the affidavits conflict, the only deposition testimony cited states that the negotiations for this contract were conducted in London. Plaintiff’s Memorandum in Opposition (exhibit U) (Testimony of Derek Dawson at 330-39); id. (exhibit G) (Testimony of Mackintosh at 274); see Affidavit of Mary Jo White ¶¶ 60-61. Discussion The issues before me are whether plaintiff is “doing business” in New York within the meaning of N.Y. Bus. Corp. Law § 1312(a), and if so, whether section 1312(a) can be applied constitutionally to bar plaintiff’s action. Because I determine that plaintiff is not doing business in New York under section 1312(a), I do not reach the constitutional issue. See Ayer v. General Dynamics Corp., 82 F.R.D. 115, 119 n.7 (S.D. N.Y.1979) (Pierce, J.). A foreign corporation is presumed to be doing business in its home jurisdiction. Great White Whale Advertising, Inc. v. First Festival Productions, 81 A.D.2d 704, 706, 438 N.Y.S.2d 655, 658 (1981). The defendant seeking to invoke section 1312(a) to terminate a suit by its adversary bears the burden of establishing that the plaintiff has not met the section’s requirements. Textile Banking Co. v. Colonial Chemical Corp., 285 F.Supp. 824, 828 (N.D.Ga.1969); Dixie Dinettes, Inc. v. Schaller’s Furniture, Inc., 71 Misc.2d 102, 103, 335 N.Y.S.2d 632, 635 (App.Div.1972). Determinations of doing business must be made on a case-by-case basis. Conklin Limestone Co. v. Linden, 22 A.D.2d 63, 64, 253 N.Y.S.2d 578, 580 (1964). In claiming that plaintiff is doing business under section 1312(a), defendants point to the following factors: (1) plaintiff has continuously received a substantial portion of its income from royalties generated by licensings by defendants, (2) plaintiff has sought to enhance its income through an audit of defendants conducted by Solomon & Finger and supervised by Frederick Schneier of plaintiff’s sister company, Hem-dale Leisure; and (3) plaintiff continuously sought to mount a first-class production" } ]

[ { "docid": "5416478", "title": "", "text": "relieved of her secretarial duties and admittedly performed work which was equal in skill, duties and responsibilities to that performed by Donovan and Sussman, the full-time male teachers. Katz brought this suit against the District, alleging that the District had violated the Equal Pay Act of 1963 (the Act), 29 U.S.C. § 206(d)(1), which provides that: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. The District Court agreed with Katz’s allegation that, of the three full-time staff members at the Alternative School, the two males were receiving salaries greater than the salary Katz, a female, was receiving. The District conceded that, at least during a portion of the 1974-1975 school year, these three staff members were performing equal work. The District Court held, however, that Katz had'not established a prima facie case because the extra duties she had done which resulted in her performance being equal to that of the two male teachers were not duties which she was required to perform in her job as a teacher assistant. A prima facie case of violation of the Act is established where it is shown that “the employer [has paid] workers of one sex more than workers of the opposite sex for equal work.” Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Equal work under the Act means “jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d). We disagree with the District Court’s interpretation that the word “require,” as used in the statute, means that two employees are doing equal work for an employer only where" } ]

[ { "docid": "13768314", "title": "", "text": "affected the working environ ment significantly. III. Plaintiffs’ claims under the Equal Pay Act Plaintiffs claim that defendant discriminated against them on the basis of their sex, by paying them lesser wages than similarly situated male employees. Title VII provides that it is unlawful for an employer to “discriminate against any individual with respect to compensation ...” because of their sex. 42 U.S.C. § 2000e-2(a) (1982). The Equal Pay Act provides: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.... 29 U.S.C. § 206(d)(1). ■ The Equal Pay Act provisions constitute a specific application of the three-pronged disparate treatment analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In such cases, the plaintiff carries the initial burden of establishing a prima facie case of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas, supra. Plaintiffs must therefore show that they received unequal pay vis-a-vis male employees for jobs performed under similar working conditions requiring equal skill, effort and responsibility. Pearce v. Wichita County, City of Wichita Falls, Texas Hospital Board, 590 F.2d 128 (5th Cir.1979); Wheeler v. Armco Steel Corp, 471 F.Supp. 1050 (S.D.Tex.1979). The rationale for requiring plaintiffs to carry this initial burden is to eliminate facially valid reasons for certain employment actions, and to require plaintiffs to come forward with evidence which establishes an inference" }, { "docid": "3159296", "title": "", "text": "& N.J., No. 10-ev-7462, 2012 WL 1758128, at *3 (S.D.N.Y. May 17, 2012); see 29 C.F.R. § 1620.13(e) (“Application of the equal pay standard is not dependent on job classifiea tions or titles but depends on actual job requirements and performance.”); Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir.1995) (“[T]he standard under the Equal Pay Act is job content and not job title or description.”). In “a professional setting such as that of a college,” the proper test for establishing a prima facie case ... is whether the plaintiff is receiving lower wages than the average of wages paid to all employees of the opposite sex performing substantially equal work and similarly situated with respect to any other factors, such as seniority, that affect the wage scale. Lavin-McEleney, 239 F.3d at 482 (quoting Hein v. Or. Coll. of Educ., 718 F.2d 910, 916 (9th Cir.1983)). Once a plaintiff has made such a prima facie showing, the burden shifts to the employer to prove that the pay differential is based on “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1); see also Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (structure and history of EPA suggest that “once the [plaintiff] has carried his burden ..., the burden shifts to the employer to show that the differential is justified under one of the [EPA’s] four exceptions”). The New York equal pay law provides: No employee shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to a differential based on: a) a seniority system; b) a merit system; c) a system which measures earnings by quantity or quality of" }, { "docid": "23370502", "title": "", "text": "II. DISCUSSION A. Discrimination Because of Sex The EPA prohibits wage discrimination on the basis of sex in section 206(d)(1), which provides in pertinent part: No employer ... shall discriminate ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.... 29 U.S.C. § 206(d)(1). Under Title VII, it is an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l) (emphasis added). If the jurisdictional prerequisites of both the EPA and Title VII are satisfied, a violation of the EPA is also a violation of Title VII. 29 C.F.R. § 1620.27(a). In order to establish a prima facie case under the EPA, the plaintiff must show “that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) (quoting 29 U.S.C. § 206(a)(1)). Plaintiff need only show discrimination in pay against an employee vis-a-vis one employee of the opposite sex. Brock v. Georgia Southwestern College, 765 F.2d 1026, 1033 n. 10 (11th Cir.1985). If, however, other appropriate “comparators,” i.e., employees doing substantially equal work, were wrongly excluded from the comparison by plaintiff, defendant must call them to the attention of the court. Id. The" }, { "docid": "5336125", "title": "", "text": "asserts that the district court erred by finding that the defendants established non-discriminatory reasons for the pay differential. To establish a prima facie case under the Equal Pay Act the plaintiff is required to prove at trial “that an employer pays different wages to employees of opposite sex ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) (quoting 29 U.S.C. § 206(d)(1)). “Once the plaintiff has established a prima facie case, the burden shifts to the employer to prove that the difference in pay is justified by one of the four exceptions to the Equal Pay Act: (i) a seniority system; (ii) a merit pay system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any factor other than sex.” Brock v. Georgia Southwestern College, 765 F.2d 1026, 1036 (11th Cir.1985) (citing 29 U.S.C. § 206(d)(1)). If the employer establishes that the disparity is justified by one of these exceptions then the plaintiff must come forward with affirmative evidence that indicates that the proffered reason for the disparity is actually a pretext for sex discrimination. Id. A district court’s decision that an employer has established one of the four exceptions to the Act and shown that sex provided no basis for the pay disparity is a finding of fact and will not be reversed on appeal unless clearly erroneous. Brock, 765 F.2d at 1036. Schwartz asserts that the court, relying on the second exception to the Equal Pay Act, found that a formal merit pay system accounted for the pay differential. The defendants argue that the court relied upon the fourth statutory exception, any factor other than sex, in concluding that the defendants satisfied their burden. The defendants assert that the difference in pay resulted from raises given to the faculty based upon service to the university, publication, administrative duties, meritorious research, supervision of doctoral students, and performance. They" }, { "docid": "23653695", "title": "", "text": "One of the other teachers, Nancy Linn, had recently been terminated from employment at Mary Institute. The other teacher, Marie Globig, was in her nineteenth year as a biology teacher at Mary Institute. II. Application of the Equal Pay Act Under the Equal Pay Act, Mary Institute is forbidden to discriminate between employees on the basis of sex by paying wages to employees * * * at a rate less than the rate at which [it] pays wages to employees of the opposite sex * * * for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performéd under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex * * *. 29 U.S.C. § 206(d)(1). For purposes of the Act, “equal” means “substantially equal”; male and female jobs may be compared even if they are not identical. See, e. g., Peltier v. City of Fargo, 533 F.2d 374, 377 (8th Cir. 1976); 29 C.F.R. §§ 800.120, .122 (1978). If a plaintiff shows that an employer has paid males and females different wages for substantially equal work, the employer then must show that one of section 206(d)(1)’s four exceptions applies. See Corning Glass Works v. Brennan, 417 U.S. 188, 195-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); Ridgway v. United Hospitals-Miller Division, 563 F.2d 923, 926 (8th Cir. 1977); 29 C.F.R. § 800.141 (1978). As to the portion of Horner’s claim that is based on a comparison between her job and that of Thorne, there is no dispute that Mary Institute paid different wages to Horner and Thorne. The only questions are (1) whether their jobs were substantially equal and (2) if so, whether the wage differential was related to sex. The district court held, in effect, that the jobs were not substantially equal and announced that, in the event that the issue were reached, it would‘find the difference" }, { "docid": "22236894", "title": "", "text": "failed to establish her claim for sexual harassment under Title VII. II. Jones’ Pay and Promotion Claims a. Equal Pay Jones asserts that Flagship discriminated against her in pay under both the Equal Pay Act and Title VII. The former statute provides: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex____ 29 U.S.C. § 206(d)(1) (emphasis added). Unlike Title VII, the burden of persuasion may shift from the plaintiff to the defendant in a suit under the Equal Pay Act. The plaintiff’s having made out a prima facie case has different ramifications under the Equal Pay Act than it has under Title VII. Under the Equal Pay Act, the plaintiff has the burden of proof to “show that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1, 10 (1974). If the plaintiff meets this burden, the burden of proof “shifts to the employer to show that the differential is justified under one of the Act’s four exceptions.” Id. at 196, 94 S.Ct. at 2229, 41 L.Ed.2d at 11. The exceptions are affirmative defenses on which the employer has the burden both of production and of persuasion. Id. at 197, 94 S.Ct. at 2229, 41 L.Ed.2d at 11." }, { "docid": "16878465", "title": "", "text": "gender-based wage discrimination by enacting the Equal Pay Act. Specifically, the Equal Pay Act prohibits employers from discriminating on the basis of sex by paying an employee at a rate less than that paid to an employee of the opposite sex for performing equal work. See 29 U.S.C. § 206(d)(1). The Act provides: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. Id. (emphasis in original). “The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve.” Corning Glass Works v. Brennan, 417 U.S. 188, 208, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). In order to establish a prima facie case of wage discrimination under the Equal Pay Act, plaintiffs “must show that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Id. at 195, 94 S.Ct. 2223 (quoting 29 U.S.C. § 206(d)(1)). Once plaintiffs have carried then* burden, “the burden shifts to the employer to show that the differential is justified under one of the Act’s four exceptions.” Id. at 196, 94" }, { "docid": "11519027", "title": "", "text": "work environment. In her opposition memorandum, however, the Plaintiff represents that she is withdrawing her sexual harassment and hostile work environment claims. Consequently, with regard to the Plaintiffs sexual harassment and hostile work environment claims, the Defendant’s motion for summary judgment (dkt.# 32) is GRANTED. F. WAGE DISCRIMINATION 1. EPA The Plaintiff next alleges that the Defendant violated the EPA by paying her less than DeGenova. The relevant portion of the EPA reads as follows: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.... 29 U.S.C. § 206(d)(1). “To prove discrimination under the Equal Pay Act, a plaintiff must show that: i) the employer pays different wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working conditions.” Lavin-McEleney v. Marist Coll, 239 F.3d 476, 480 (2d Cir.2001) (internal quotation marks omitted). “With regard to the second point, [a] plaintiff need not demonstrate that her job is identical to a higher paid position, but only must show that the two positions are ‘substantially equal’ in skill, effort, and responsibility.” Id. (internal quotation marks omitted). If a plaintiff makes out a prima fade case under the EPA, “the burden of persuasion shifts to the defendant to show that the wage disparity is justified by one of the affirmative defenses provided under the Act: (i) a seniority system; (ii) a merit" }, { "docid": "16878479", "title": "", "text": "provisions of this section shall discriminate ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.... 29 U.S.C. § 206(d)(1) (emphasis added). By establishing all of the elements of his or her prima facie case — “that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions,’ ” Corning, 417 U.S. at 195, 94 S.Ct. 2223 — a plaintiff has effectively shown that discrimination based on sex exists or at one time existed, at least for purposes of surviving a motion for summary judgment. Nothing else is required. The majority’s misreading becomes apparent when it focuses upon the fact that “the pay differential between NPs and PAs is based on two separate pay scales, one that is regionally based (the NP scale) while the other is nationally based (the PA scale).” Maj. Op. at 1873. This fact has nothing to do with the plaintiffs’ prima facie case, and to discuss it in this context is to conflate the plaintiffs’ burden to establish a prima facie case under the EPA with the government’s burden to prove that any pay differential is “based on any other factor other than sex.” 29 U.S.C. § 206(d)(1)(iv); see Corning, 417 U.S. at 196, 94 S.Ct. 2223 (after plaintiffs establish a prima facie case, “the burden shifts to the employer to show that the differential is justified under one of the Act’s four exceptions”). Indeed, the majority makes this explicit, stating that “[t]he Yant plaintiffs did not" }, { "docid": "5341505", "title": "", "text": "unlawful employment practice under this sub-chapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is autho rized by the provisions of section 206(d) of Title 29. 29 U.S.C. § 206(d)(1), the Equal Pay Act of 1963 (the Act), provides: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions * * * . We note at the outset that the provisions of Title VII regarding sex discrimination in the area of compensation must be construed in harmony with the Equal Pay Act. Orr v. Frank R. MacNeill & Son, Inc., 511 F.2d 166, 170 (5th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975); Ammons v. Zia Co., 448 F.2d 117, 119 (10th Cir. 1971); Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970); Usery v. Bettendorf Community School District, 423 F.Supp. 637, 639 (S.D. Iowa 1976); Howard v. Ward County, 418 F.Supp. 494, 503 (D.N.D.1976). This court in Katz v. School District of Clayton, Missouri, 557 F.2d 153, 156 (8th Cir. 1977), recently stated the following concerning the Act: A prima facie case of violation of the Act is established where it is shown that “the employer [has paid] workers of one sex more than workers of the opposite sex for equal work.” Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Equal work under the Act means “jobs the performance of which requires equal skill, effort and responsibility," }, { "docid": "14442087", "title": "", "text": "wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. 29 U.S.C. § 206(d)(1). “The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve.” Corning Glass Works v. Brennan, 417 U.S. 188, 208, 94 S.Ct. 2223, 2234, 41 L.Ed.2d 1 (1974). It embodies the deceptively simple principle that “employees doing equal work should be paid equal wages, regardless of sex.” H.R.Rep. No. 309, 88th Cong., 1st Sess. 2, reprinted in 1963 U.S. Code Cong. & Ad.News 687, 688. To make out a case under the Equal Pay Act, a plaintiff must prove that an employer is paying different wages to employees of the opposite sex for equal work. Corning Glass Works, 417 U.S. at 195, 94 S.Ct. at 2228. The jobs held by employees of opposite sexes need not be identical, but they must be “substantially equal.” Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir.1979), aff’d on other grounds, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). The question of whether two jobs are substantially equal is one that must be decided on a case-by-case basis. We review that finding under the “clearly erroneous” standard. Id. Once the plaintiff has established a prima facie case, the burden shifts to the employer to prove that the differential in wages is justified under one of the Equal Pay Act’s four exceptions. Corning Glass Works, 417 U.S. at 196, 94 S.Ct. at 2229. Since" }, { "docid": "5840719", "title": "", "text": "639, 644-45 (11th Cir.1983). A. PRIMA FACIE CASE In order to make out a prima facie case under the Equal Pay Act, a plaintiff must demonstrate “that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (quoting 29 U.S.C. § 206(d)(1)). This burden is fulfilled by showing discrimination in terms of pay vis-a-vis one employee of the opposite sex. Brock v. Georgia Southwestern College, 765 F.2d 1026, 1033 n. 10 (11th Cir.1985). The evidence presented by Ms. Price establishes a prima facie Equal Pay Act case, and this is conceded by the defendants. B. LSOC’S AFFIRMATIVE DEFENSE Once the plaintiff has established a prima facie case under the Equal Pay Act, the burden shifts to the employer to prove that the difference in pay is justified by one of the four exceptions established by Congress in the Act: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any factor other than sex. Corning Glass Works, 417 U.S. at 196, 94 S.Ct. at 2229; see 29 U.S.C. § 206(d)(1). These exceptions are affirmative defenses on which the employer bears the burden of proof. Corning Glass Works, 417 U.S. at 196, 94 S.Ct. at 2229. LSOC seeks to justify the pay disparity on the fourth defense — a differential based on a factor other than sex. In 1983, NASA consolidated twelve service contracts for the pre-launch processing of the space shuttles into a single contract, and sought bids for the performance of this unified Shuttle Processing Contract. NASA was concerned that the intensely competitive nature of the bid process would induce bidders to contemplate wage reductions for those employees of the twelve separate contractors that would have to be retained by the successful bidder for performance of the contract. It, therefore, cautioned offerors that" }, { "docid": "16432778", "title": "", "text": "differences are legitimate and nondiscriminatory. The plaintiff has simply failed to meet her burden of proving any discriminatory intent with regard to the disparity of salary. Accordingly, the fourth cause of action is DISMISSED. V. Equal Pay Act Claim Graham’s fifth cause of action asserts a claim for violation of the Equal Pay Act. 29 U.S.C. § 206(d)(1) (“EPA”). The EPA prohibits an employer from discriminating, in the payment of wages, between employees on the basis of one's gender. To succeed on this claim, Graham must establish a prima facie case that Texasgulf paid different wages to employees of opposite sexes “for equal work on jobs, the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1); Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974). The plaintiff has the burden of proving by a preponderance of the evidence that allegedly equivalent jobs involve “equal work.” Once the prima facie case has been established, the burden shifts to the employer to prove that the pay differential is due to a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any other factor other than sex. 29 U.S.C. § 206(d)(1); Corning Glass Works, 417 U.S. at 196, 94 S.Ct. at 2229. Once again, the plaintiff has failed to direct the Court to any authority that might support her claim (see Plaintiff’s Proposed Findings and Conclusions ¶¶ 18, 22). The Court is not convinced that the jobs of the attorneys in the Law Department demand equal skill, effort, and responsibility. Cf. Horner v. Mary Institute, 613 F.2d 706 (8th Cir.1980) (teachers within one department of school found not to have equal responsibility under EPA, rather, each required different training and experience). Assuming arguendo that the jobs of the attorneys within the Law Department are equal under the EPA, the defendants have shown that pay disparity was based on factors other than sex. See § III, supra. Accordingly, Graham’s claim for violation of the EPA is" }, { "docid": "22874124", "title": "", "text": "basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. 29 U.S.C.A. § 206(d)(1). As under Title VII, a plaintiff bringing a claim under the Equal Pay Act must first establish a prima facie case of wage discrimination. To establish a prima facie case, Brinkley must prove: (1) that her employer has paid different wages to employees of opposite sexes; (2) that said employees hold jobs that require equal skill, effort, and responsibility; and (3) that such jobs are performed under similar working conditions. See Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Plaintiff may use her successor in the position as a salary comparator for purposes of establishing the prima facie case. See 29 C.F.R. § 1620.13(b)(4) (1998). Unlike a Title VII case, however, under the Equal Pay Act, upon establishing a prima facie case, both the burdens of production and persuasion shift to the defendant. See Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 344 (4th Cir.1994). The defendant bears the burden of proving by a preponderance of the evidence that the wage difference between the male and female employees was the result of one of the four enumerated statutory affirmative defenses: “(i) a se niority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any" }, { "docid": "22464009", "title": "", "text": "Judgment. In other words, only facts presented during the resolution of the motion for summary judgment, and not facts presented at the later bench trial on the Title VII claim, are relevant to our review of the grant of summary judgment on the Equal Pay Act claim. To establish a prima facie case under the Equal Pay Act of 1963, a complainant “must show that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) (quoting 29 U.S.C. § 206(d)(1)). Once a plaintiff makes out a prima facie case, the burden shifts to the employer to prove that the difference in pay is justified by one of the four exceptions in the Equal Pay Act: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” Corning Glass Works, 417 U.S. at 196, 94 S.Ct. at 2229 (quoting 29 U.S.C. § 206(d)(1)). The jobs held by the employees of opposite sexes need not be identical; rather, they need only be substantially equal. Corning Glass Works, 417 U.S. at 203-04, 94 S.Ct. at 2232-33. The Equal Pay Act prescribes a form of strict liability: Once the disparity in pay between substantially similar jobs is demonstrated, the burden shifts to the defendant to prove that a “factor other than sex” is responsible for the differential. If the defendant fails, the plaintiff wins. The plaintiff is not required to prove discriminatory intent on the part of the defendant. See Mitchell v. Jefferson County Bd. of Educ., 936 F.2d 539 (11th Cir.1991). A plaintiff establishes a prima facie case by comparing the jobs held by the female and male employees, and by showing that those jobs are substantially equal, not by comparing the skills and qualifications of the individual employees holding those" }, { "docid": "23214614", "title": "", "text": "of persuasion shifts to the employer to prove the disparity is justified by one of these defenses. See Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir.1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). I Equal Pay Act A. General Standards The Equal Pay Act, passed by Congress in 1963, prohibits employers from discriminating among employees on the basis of sex by paying higher wages to employees of the opposite sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). To prove a violation of the EPA, a plaintiff must first establish a pri-' ma facie case of discrimination by showing: “i) the employer pays different wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working conditions.” Tomka, 66 F.3d at 1310; accord Corning Glass Works, 417 U.S. at 195, 94 S.Ct. 2223. Under the EPA, proof of the employer’s discriminatory intent is not necessary for the plaintiff to prevail on her claim. See Pollis v. New School for Social Research, 132 F.3d 115, 118 (2d Cir.1997); Strecker v. Grand Forks County Soc. Serv. Bd., 640 F.2d 96, 99 n. 1 (8th Cir.1980) (“The Equal Pay Act creates a type of strict liability; no intent to discriminate need be shown.”), adopted en banc, 640 F.2d 96, 109 (8th Cir.1981). Thus, a prima facie showing gives rise to a presumption of discrimination. Once a plaintiff makes out a prima facie case under the EPA, the burden of persuasion shifts to the defendant to show that the wage disparity is justified by one of the affirmative defenses provided under the Act: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). Further, to successfully" }, { "docid": "22355523", "title": "", "text": "Act (“EPA”) to carry out this broad mandate. The Act prohibits employers from discriminating between employees on the basis of sex by paying higher wages to members of the opposite sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1) (1988). In order to prove a violation of the EPA, a plaintiff must first establish a prima facie case of wage discrimination by demonstrating that: (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; (3) the jobs are performed under similar working conditions. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974). Once the plaintiff makes out a prima facie case, the burden shifts to the employer to justify the wage differential by proving that the disparity results from: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1); see also Corning, 417 U.S. at 196, 94 S.Ct. at 2229. The school district argues that the “burden under the Equal Pay Act was simply to show that a factor other than sex accounted for the pay differential. [Appellees] did that when they showed that a qualification for being appointed to the higher paying position was ranking third or higher on the examination.” In granting summary judgment for the defendants on Aldrich’s EPA claim, the district court agreed with the school district and the commission, concluding that “[e]ven if the plaintiff could prove that she is being forced to perform the same duties as the male custodians, a proposition for which there is no support in the record, the simple fact is that the pay differentia] between custodians and cleaners is based on a factor other than sex, i.e., the civil service examination.” Aldrich argues that the district court erred by holding" }, { "docid": "14862459", "title": "", "text": "Mitchell had failed to carry her burden of persuasion on the ultimate factual issue in a disparate treatment case — whether the defendant intentionally discriminated against the plaintiff. This abbreviated procedure was approved by the Supreme Court in U.S. Postal Service Board v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). Thus, although we disagree with the district court’s ruling that the Board’s pay schedule constituted a seniority system, we agree with its ultimate finding under Title VII that the plaintiff failed to prove intentional gender discrimination. B. The Equal Pay Act provides that no employer shall discriminate between employees on the basis of sex by paying employees of one sex at a lower rate than that at which he pays employes of the opposite sex “for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.... ” 29 U.S.C. § 206(d)(1). This prohibition is subject to four exceptions: “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” Id. The Supreme Court has stated that the EPA consists of two parts, a definition of the violation followed by four affirmative defenses. County of Washington v. Gunther, 452 U.S. 161, 169, 101 S.Ct. 2242, 2247, 68 L.Ed.2d 751 (1981). A plaintiff establishes a prima facie case by showing that her employer has paid different wages to male and female employees for equal work, as described in the first part of the Act. E.E.O.C. v. White & Son Enterprises, 881 F.2d 1006, 1009 (11th Cir.1989). The burden then shifts to the employer to show justification for the differential by establishing one of the exceptions, or affirmative defenses, contained in the second part of the Act. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1505 (11th Cir.1988). To" }, { "docid": "9480080", "title": "", "text": "over substance, as such, Plaintiffs complaint advances a valid assertion of a claim under the EPA. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 131 (2d Cir.1996) (EPA applies when claim raises sex discrimination under Title VII). The EPA is part of the Fair Labor Standards Act, and provides, in pertinent part: No employer having employees subject to any provisions of [§ 6 of the FLSA] shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.... 29 U.S.C. § 206(d)(1). To establish a prima facie case under the EPA, a plaintiff has the burden of showing that the employer paid different wages to employees of opposite sexes in the same establishment for equal work on jobs whose performance requires equal skill, effort, and responsibility. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2228, 2228, 41 L.Ed.2d 1 (1974). A plaintiff need not demonstrate that her job is identical to a higher paid position, only that the two positions are “substantially equal,” but, “merely comparable” positions are not relevant to the inquiry. See Lambert v. Genesee Hosp., 10 F.3d 46, 56 (2d Cir.1993). A distinguishing characteristic of the EPA is that “a plaintiff need not prove an employer intended to discriminate against her in order to prevail on her claim.” Tomka, 66 F.3d at 1310. Once the plaintiff makes out a prima facie ease, the burden of persuasion shifts to the employer to prove that the disparity is justified by one of four statutorily provided affirmative defenses. Id. Victory’s" }, { "docid": "9765838", "title": "", "text": "which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. 29 U.S.C. § 206(d)(1). “For purposes of the Act, ‘equal’ means ‘substantially equal’; male and female jobs may be compared even if they are not identical.” Horner v. Mary Institute, 613 F.2d 706, 713 (8th Cir.1980) (citing Peltier v. City of Fargo, 533 F.2d 374, 377 (8th Cir.1976)); see 29 C.F.R. § 1620.14 (1986). In order to sustain a claim under the Equal Pay Act, plaintiff must show that the jobs at issue require “equal effort, skill and responsibility, ... and are performed under similar working conditions.” McKee v. McDonnell Douglas Technical Services Co., 700 F.2d 260, 263 (5th Cir.1983), amended, reh’g denied, 705 F.2d 776 (5th Cir.1983); EEOC v. Altmeyer’s Home Stores, Inc., 672 F.Supp. 201, 214 (W.D.Pa.1987); 29 C.F.R. § 1625.15-.18 (1986). Plaintiff has the burden of proving by a preponderance of the evidence that the jobs were essentially equal. Graham v. Texasgulf Inc., 662 F.Supp. 1451, 1464 (D.Conn.1987) aff'd without op., 842 F.2d 1287 (2d Cir.1988). If plaintiff is able to show a differential in wages on the basis of sex, then defendant must show that this dif ferential falls within one of the four exceptions to 206(d)(1). Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2228, 2229, 41 L.Ed.2d 1 (1974); Winkes v. Brown University, 747 F.2d 792, 793 (1st Cir.1984). Dr. Fisher presented evidence which demonstrated that married women received less in salary than men or single women in substantially similar positions. Dr. Fisher’s data compared the starting" } ]

[ { "docid": "8568213", "title": "", "text": "the failure to act as charged in the two Counts of the Information is alleged to have been wilful. A failure to act is wilful if voluntary and purposeful and with the specific intent to fail to do what the law requires to be done, that is to say, with the bad purpose to disobey or disregard the law. I charge you that the only bad purpose necessary for the government to prove in this case is the deliberate intention not to file tax returns, which the defendant knew he was required to file, at the time he was required by law to file them. Compare United States v. Pomponio, - U.S. -, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976). The court also fully instructed the jury on the necessity of proving intent. Considering the instructions as a whole, the question of good faith was adequately included and there was no prejudicial error in the failure of the court to give a separate instruction on the subject. Speers v. United States, supra; Beck v. United States, supra. See also United States v. Stone, 431 F.2d 1286 (5th Cir. 1970), cert. denied, 401 U.S. 912, 91 S.Ct. 879, 27 L.Ed.2d 811 (1971); New England Enterprises, Inc. v. United States, 400 F.2d 58 (1st Cir. 1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969). AFFIRMED. . In a similar case, United States v. Porth, 426 F.2d 519, 523 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), we held: . A taxpayer’s return which does not contain any information relating to the ' taxpayer’s income from which the tax can be computed is not a return within the meaning of the Internal Revenue Code or the regulations adopted by the Commissioner. . . . . With reference to this interview, the agent testified as follows: A. But I explained the penalty, then I further explained the penalties for not filing a tax return. Q. What did Dr. Hoopes state to you? A. Again he stated he was well aware of the law and" } ]

[ { "docid": "18712683", "title": "", "text": "Parrott, 434 F.2d 294, 295 (10th Cir.1970), cert. denied, 401 U.S. 979, 91 S.Ct. 1211, 28 L.Ed.2d 330 (1971). The waiver rule has been a target of criticism by this court, see United States v. Lopez, 576 F.2d 840, 842-43 (10th Cir.1978), but it need not form the basis of our affirmance, see Alfonso, 738 F.2d at 372. Had Lofton renewed the motion, the sufficiency of the evidence would be determined by examining the entire record in the light most favorable to the Government. See id.; United States v. Guerrero, 517 F.2d 528, 530-31 (10th Cir.1975). Judged by this standard, the record discloses sufficient evidence of malice to sustain the conviction. There was testimony that, shortly before the shooting, Lofton had told two different people that she might kill her husband. One witness testified that Lofton stated “she was going to make him [Ronald Lofton] as miserable as she possibly could.” Rec., vol. II, at 10. Although Lofton testified that she placed the gun in the car several days before the shooting, there was also evidence that, just prior to the shooting, she returned to her house to pick something up. This testimony is sufficient to sustain the verdict. III. HEAT OF PASSION INSTRUCTIONS A criminal defendant is entitled to jury instructions on any theory of defense find ing support in the evidence and the law. Failure to so instruct is reversible error. Bird v. United States, 180 U.S. 356, 361-62, 21 S.Ct. 403, 405, 45 L.Ed. 570 (1901); United States v. Jenkins, 701 F.2d 850, 858 (10th Cir.1983) (citing cases); United States v. Swallow, 511 F.2d 514, 523 (10th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66 (1975). The sufficiency of the instructions is determined by viewing the charge as a whole. Jenkins, 701 F.2d at 858. When a criminal defendant has raised a theory of defense, the trial court should refer to that theory and to the testimony bearing on it and submit the issue with an instruction on the applicable law. Jenkins, 701 F.2d at 859. The jury should be advised of the" }, { "docid": "18566917", "title": "", "text": "member of the conspiracy and a participant in the distribution of the cocaine. V Finally, defendants Mora and Duarte assert error by the trial court when it refused their proposed instruction that a defendant’s knowledge of the objective of the conspiracy must be proved by “clear and unequivocal” evidence. To support their assertion they cite Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943); United States v. Jones, 808 F.2d 754 (10th Cir.1987); and United States v. Austin, 786 F.2d 986 (10th Cir.1986). These cases involved challenges to the sufficiency of evidence, not to the jury instructions. Although knowledge of a conspiracy's objective, in order to establish the defendant’s requisite intent, must be shown by “clear, not equivocal” evidence, see Direct Sales, 319 U.S. at 711, 63 S.Ct. at 1269, defendants have not cited, nor have we found, any ease requiring that the jury be instructed in that language. These criminal defendants were entitled to a jury instruction addressing their theory of defense, but the instruction need not have been given in the form requested if the issues of the case were adequately covered in the instructions as a whole. United States v. Kapnison, 743 F.2d 1450, 1461 (10th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985); United States v. Rothbart, 723 F.2d 752, 754 (10th Cir.1983). As was stated in United States v. Burke, 781 F.2d 1234, 1240 (7th Cir.1985): “It is a mistake to lift language out of a passage such as this and insert it in a jury instruction. Language in judicial opinions is not meant to be given undigested to a jury.” We have reviewed the instructions given in this case, and we conclude that they accurately state the government’s burden of proof on the elements of conspiracy. Simply instructing the jury that the defendants’ intent had to be proved beyond a reasonable doubt was adequate; adding the “clear and unequivocal” language may have confused the jury. The court’s refusal to give their proffered instruction did not prejudice defendants unfairly. See United States v." }, { "docid": "9589224", "title": "", "text": "F.2d 721 (10th Cir. 1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2675, 53 L.Ed.2d 270 (1977). However the instructions submitted by defendant need not be given in the form requested, if the issues of the case are adequately covered in the charge. United States v. Nolan, 551 F.2d 266, 274-75 (10th Cir.1977), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977); United States v. Newson, 531 F.2d 979, 983 (10th Cir.1976). The sufficiency of the instructions is not determined by the giving or omission of particular instructions but by viewing the charge as a whole. United States v. Burns, 624 F.2d 95, 105 (10th Cir.1980), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980); United States v. Westbo, 576 F.2d 285, 289 (10th Cir.1978); United States v. Beitscher, 467 F.2d 269, 273 (10th Cir.1972). Defendant’s theory of defense here is premised on his functions and his state of mind at the time of the drug sales in question. He testified he had been made an informant for the F.B.I. in 1972 and also for a narcotics detective, Mr. Mares, who was working for the Sheriff’s office. (V R. 271) Defendant basically contended he was acting as an informant and thus the willfulness and intent necessary for a violation of the statutes was lacking so that he should be acquitted. On appeal defendant argues that rejection of his instruction on this theory of defense was prejudicial error, citing United States v. Davis, 656 F.2d 153, 155-56 (5th Cir.1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982). Here in his instructions to the jury the trial judge stated: The crimes charged in this case are serious crimes which require proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the acts. To establish specific intent, the Government must prove that the Defendant knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all the facts and circumstances" }, { "docid": "21546473", "title": "", "text": "the existence of a conspiracy.” The court also charged the jury that what the evidence “must show beyond a reasonable doubt, in order to establish proof that a conspiracy existed, is that the members in some way or manner, or through some contrivance, positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan.” Moreover, Instruction 21 made it clear that “a person who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator.” It stated that before a conspiracy could be found, the evidence “must show beyond a reasonable doubt that the conspiracy was knowingly formed, and that the Defendant, or other person who is claimed to have been a member, willfully participated in the unlawful plan, with the intent to advance or further some object or purpose of the conspiracy.” The instructions covered the point made in Kendall, 766 F.2d at 1432, that neither the defendant’s “knowledge alone nor his mere association with the conspirators, however, is enough to convict him of conspiracy.” Association alone would not be enough, under the charge given, for conviction of conspiracy; it was required instead that the conspiracy was knowingly formed and that the defendant willfully participated in the unlawful plan. Viewing the charge as a whole, we believe the jury was adequately instructed. See United States v. Orr, 825 F.2d 1537, 1542 and n. 3 (11th Cir.1987) (holding sufficient instructions similar to those given in the instant ease, although a specific buyer-seller type instruction was requested); United States v. Lively, 803 F.2d 1124, 1128-29 (11th Cir.1986) (same). But see United States v. Douglas, 818 F.2d 1317, 1320-23 (7th Cir.1987); United States v. Prieskorn, 658 F.2d 631, 636 (8th Cir.1981). “[T]he sufficiency of the instructions is not determined by giving or not giving particular instructions, but rather by viewing the instructions as a whole.” United States v. Burns, 624 F.2d 95, 105 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). In sum," }, { "docid": "22967314", "title": "", "text": "the jury fully understood the issues,” and to determine “whether the instruction is misleading or states the law incorrectly to the prejudice of the objecting party.” Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir.1986). The constructive possession instruction given to the jury is a correct statement of the law. See United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986). The defendant's proffered instruction merely amplified the rule and tended to emphasize the defendant’s view of the case. Courts are not required to give such instructions. See United States v. Agee, 597 F.2d 350, 360-61 (3d Cir.) (en banc), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979); United States v. Rojas, 537 F.2d 216, 219-20 (5th Cir.1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977). In view of the broad latitude accorded trial judges in tailoring the instructions to the circumstances of a case, see United States v. Burgess, 791 F.2d 676, 680 (9th Cir.1986), we conclude that the constructive possession instruction given to the jury was proper. We similarly find no error in the district court’s decision to omit an instruction on simple possession, a lesser included offense of possession with intent to distribute. See United States v. Burns, 624 F.2d 95, 104 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). A trial court should give an instruction on a lesser included offense if the jury could rationally convict the defendant on the less er included charge and acquit him of the greater. See Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973); United States v. Jackson, 726 F.2d 1466, 1470 (9th Cir.1984) (per curiam); 2 C. Wright, supra, § 498, at 795. In this case, our review of the record confirms the district court’s conclusion that a simple possession instruction was not required. See United States v. Johnson, 734 F.2d 503, 505-06 (10th Cir.1984) (per curiam); Fitzgerald v. United States, 719 F.2d 1069, 1071-72 (10th Cir.1983). In particular, we note the large quantity of cocaine" }, { "docid": "1683069", "title": "", "text": "611 F.2d 1335, 1343 (10th Cir.1979). Similarly, he may not mention facts not in evidence to support a finding of guilt, Latimer, 511 F.2d at 503; Marks v. United States, 260 F.2d 377, 383 (10th Cir.1958), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302 (1959), he may not personally attest to the credibility of government witnesses or attack the credibility of defense witnesses, Carleo, 576 F.2d at 852; United States v. Ludwig, 508 F.2d 140, 143 (10th Cir.1974), nor may he place his own integrity and credibility in issue. Latimer, 511 F.2d at 503; Ludwig, 508 F.2d at 140; United States v. Perez, 493 F.2d 1339, 1343 (10th Cir.1974). 716 F.2d at 771. Kapnison’s challenges to the prosecutor’s closing argument comments are without merit. Nor did the prosecutor's repeated references to the commission of a crime, just as “if a gun were used,” give rise to reversible error. Every slight excess of the prosecution does not require that a verdict be overturned and a new trial ordered. United States v. Coppola, 526 F.2d 764 (10th Cir.1975) [quoting Aiuppa v. United States, 393 F.2d 597 (10th Cir.1968), cert. denied, 404 U.S. 871, 92 S.Ct. 60, 30 L.Ed.2d 114 (1971)]. IX. Kapnison contends that the district court improperly instructed the jury and thereby prejudiced his right to a fair trial. We disagree. We have reviewed the instructions in detail and hold that the district court adequately and properly instructed the jury. The district court instructed on Kapnison’s defenses, and although the wording of the instructions may not have paralleled Kapnison’s proffered instructions, the instructions of the district court were adequate. In United States v. Jenkins, 701 F.2d 850 (10th Cir.1983), we stated: Where there is evidence in the record supporting his theory, a defendant in a criminal case is entitled to an instruction to the jury concerning his theory of defense and failure to so instruct is reversible error. See United States v. Felsen, 648 F.2d 681, 685-86 (10th Cir.1981), cert. denied, 454 U.S. 861, 102 S.Ct. 317, 70 L.Ed.2d 159 (1981); United States v. Posey, 647 F.2d 1048," }, { "docid": "23694658", "title": "", "text": "an agency”). The form of an instruction is a matter committed to the discretion of the trial court and there is no requirement that the court adopt the exact language of a requested instruction, provided that the issues of the case are adequately covered. United States v. Nolan, 551 F.2d 266, 274-75 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191; United States v. Hall, 536 F.2d 313, 330 (10th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285; United States v. Newson, 531 F.2d 979, 983 (10th Cir.). We are satisfied that the change was not in error and that it was not prejudicial to the defendant to use the word “action” in lieu of “payment.” We also must reject defendant’s claim that the Government failed to prove the materiality of the false statement. Shirley Marshall, the senior civil engineer who reviewed Delta’s application, testified in depth about the EDA review process for grant applications. Marshall was asked about the effect on EDA of an applicant’s acknowledgment that someone had been paid a specific amount of money for expediting the grant application. He replied that an investigation would be conducted, that EDA would want to know who was involved and what was done to expedite the application, and that EDA would determine if any of the fees paid to the expediter were eligible for payment with grant funds. He testified that no investigation would be started if the grant applicant indicated on the application that no fees had been paid to an expediter and that EDA did not care if the grant applicant hired someone to expedite the application, so long as no grant funds were used to pay the expediter for his services. (IX R.105-08; see also XII R.82). We think the evidence amply supports a jury finding that the false statement in Delta’s grant application was material and had the capacity to influence EDA’s decision to offer Delta financial assistance for its industrial park project. Consequently we uphold the conviction on Count 2. Ill The concealment or covering up charge" }, { "docid": "9589222", "title": "", "text": "he names, and his failing memory. He offers no proof as to how the witnesses, if present, would testify. See Appellant’s Brief In Chief at 9-10. Speculative allegations of an impaired defense are unpersuasive. See United States v. Huffman, 595 F.2d 551, 558 (10th Cir.1979); United States v. Askew, 584 F.2d 960, 962-63 (10th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979); Smith v. Mabry, 564 F.2d 249, 252-53 (8th Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978); United States v. Graham, 538 F.2d 261, 265 (9th Cir.1976), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 294 (1976). Although we accept the finding that the Government was negligent in failing to locate and arrest the defendant until some sixteen months after he was indicted, after weighing all of the Barker factors, and considering especially the lack of a showing of prejudice by the delay, we conclude that the defendant’s Sixth Amendment right to a speedy trial has not been violated. IV Defendant’s third contention is that the trial court erred in refusing to submit an instruction on his theory that if he was acting as a government informer, or reasonably so believed, he should be acquitted. Defendant submitted to the court a lengthy jury instruction detailing this theory of defense (I R. 65; V R. 369-70), and the trial judge rejected it as an improper statement of the law. (V R. 370-71). We express no opinion on his proffered instruction, however, because we find that the jury instructions given by the trial judge, taken as a whole, sufficiently submitted defendant’s theory of defense. Where there is evidence in the record supporting his theory, a defendant in a criminal case is entitled to an instruction to the jury concerning his theory of defense and failure to so instruct is reversible error. See United States v. Felsen, 648 F.2d 681, 685-86 (10th Cir.1981), cert. denied, 454 U.S. 861, 102 S.Ct. 317, 70 L.Ed.2d 159 (1981); United States v. Posey, 647 F.2d 1048, 1052-53 (10th Cir.1981); United States v. Hoopes, 545" }, { "docid": "9589223", "title": "", "text": "contention is that the trial court erred in refusing to submit an instruction on his theory that if he was acting as a government informer, or reasonably so believed, he should be acquitted. Defendant submitted to the court a lengthy jury instruction detailing this theory of defense (I R. 65; V R. 369-70), and the trial judge rejected it as an improper statement of the law. (V R. 370-71). We express no opinion on his proffered instruction, however, because we find that the jury instructions given by the trial judge, taken as a whole, sufficiently submitted defendant’s theory of defense. Where there is evidence in the record supporting his theory, a defendant in a criminal case is entitled to an instruction to the jury concerning his theory of defense and failure to so instruct is reversible error. See United States v. Felsen, 648 F.2d 681, 685-86 (10th Cir.1981), cert. denied, 454 U.S. 861, 102 S.Ct. 317, 70 L.Ed.2d 159 (1981); United States v. Posey, 647 F.2d 1048, 1052-53 (10th Cir.1981); United States v. Hoopes, 545 F.2d 721 (10th Cir. 1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2675, 53 L.Ed.2d 270 (1977). However the instructions submitted by defendant need not be given in the form requested, if the issues of the case are adequately covered in the charge. United States v. Nolan, 551 F.2d 266, 274-75 (10th Cir.1977), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977); United States v. Newson, 531 F.2d 979, 983 (10th Cir.1976). The sufficiency of the instructions is not determined by the giving or omission of particular instructions but by viewing the charge as a whole. United States v. Burns, 624 F.2d 95, 105 (10th Cir.1980), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980); United States v. Westbo, 576 F.2d 285, 289 (10th Cir.1978); United States v. Beitscher, 467 F.2d 269, 273 (10th Cir.1972). Defendant’s theory of defense here is premised on his functions and his state of mind at the time of the drug sales in question. He testified he had been made an informant for the" }, { "docid": "23058539", "title": "", "text": "accurate statement of the law, is within the discretion of the district judge. United States v. Troutman, 814 F.2d 1428, 1451 (10th Cir.1987). In deciding whether the judge properly exercised his discretion, we must examine the other instructions as a whole to determine if they sufficiently cover the issues in the case and focus on the facts presented by the evidence. United States v. Burns, 624 F.2d 95, 105 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). “An instruction reflecting an abstract statement of the law unrelated to the facts of the case may be refused.” Troutman, 814 F.2d at 1451. Here, the identity of the person who committed the acts underlying the offense was not really an issue, since Peña acknowledged that she was driving the car. This is not a case where it was arguably necessary for the instructions to underscore the identity issue or to comment on the vicissitudes of eyewitness testimony. Cf. United States v. Thoma, 713 F.2d 604, 608 (10th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 721, 79 L.Ed.2d 183 (1984) (discussing standards for review of refusal to give instruction concerning eyewitness testimony). The real issue presented by Peña’s theory of defense was whether she acted with the required knowledge and specific intent. The district judge gave standard instructions on each of these questions. R.Vol. Ill at 119, 124. Because these instructions adequately covered the issues, it was not error for the district judge to refuse Peña’s tendered instruction on identity. See United States v. Burns, 624 F.2d at 105. C. Lesser-Included-Offense Instruction. Peña contends that the district court should have given an instruction submitting to the jury the question whether she was guilty of simple possession of marijuana (without intent to distribute), in violation of 21 U.S.C. § 844 (1988). She was entitled to such an instruction if all of the following four conditions were met: (1) a proper request; (2) the lesser-included-offense must consist of some, but not all, of the elements of the offense charged; (3) the elements differentiating the two offenses must be" }, { "docid": "8559327", "title": "", "text": "on the expert advice of his attorney and accountant. Good faith reliance on an expert tax preparer may be a defense to a tax evasion charge, see United States v. Vannelli, 595 F.2d 402, 404-05 (8th Cir.1979), but only if the taxpayer makes complete disclosure of all the relevant facts. See, e.g., United States v. Samara, 643 F.2d 701, 703 (10th Cir.), cert. denied, 454 U.S. 829, 102 S.Ct. 122, 70 L.Ed.2d 104 (1981). The question of Meyer’s good faith reliance on expert advice, however, was submitted to the jury and there is ample evidence from which the jury could conclude the professional advice given was based on less than full disclosure by Meyer. As to all of the counts, Meyer claims the evidence was insufficient to show he had the necessary criminal intent because he believed the transactions were informal loans to him by the corporation rather than unreported income. The government, however, presented evidence the diverted checks were neither recorded as corporate receipts nor loans to Meyer, although other legitimate loan transactions were recorded in detail. Meyer’s intent argument was presented to and rejected by the jury. The evidence when viewed most favorably to the verdict is sufficient to support Meyer’s convictions. Finally, Meyer contends the district court committed error when it refused his request to give two instructions setting out the theory of his defense. A criminal defendant is entitled to a “theory of defense” instruction if the instruction correctly states the law and the facts in evidence support the theory. See United States v. Richmond, 700 F.2d 1183, 1195-96 (8th Cir.1983). As to the form of the instructions generally, however, the district court exercises its discretion and “a defendant is not entitled to a particularly worded instruction where the instructions given, when viewed as a whole, adequately and correctly cover the substance of the requested instruction.” United States v. Reda, 765 F.2d 715, 719 (8th Cir.1985). After reviewing the transcript in this case, we conclude the district court did not abuse its discretion. The proposed instructions were argumentative, and Meyer’s theory the transactions were merely informal" }, { "docid": "21546471", "title": "", "text": "says the law of conspiracy is confusing and that looking at the evidence as a whole, there was a critical question whether the scenario presented amounted to a conspiracy or a series of separate transactions. Id. at 12. “Where there is evidence in the record supporting his theory, a defendant in a criminal case is entitled to an instruction to the jury concerning his theory of defense and failure to so instruct is reversible error.” United States v. Jenkins, 701 F.2d 850, 858 (10th Cir.1983); see also United States v. Hopkins, 744 F.2d 716, 717 (10th Cir.1984) (en banc). However, the trial judge is given considerable discretion in tailoring and formulating the instructions. E.g., United States v. Nolan, 551 F.2d 266, 274-75 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). The court need not follow the exact language of a defense instruction as long as the court’s instructions correctly state the law and fairly and adequately cover the issues presented. United States v. Pack, 773 F.2d 261, 267 (10th Cir.1985); United States v. Jenkins, 701 F.2d at 858; United States v. Nolan, 551 F.2d 266, 274-75 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). Here we are satisfied that the charge as a whole adequately instructed the jury, taking defendant Fox’s theory into account. The charge covered the essential requirements for a finding of conspiracy here; this contrasted with acts amounting only to separate transactions. Instruction 17 stated plainly the essentials of the conspiracy that was charged — from at least August 1, 1987, until approximately December 5, 1987, Moresco, Fox, Dente and Boubon did knowingly conspire and combine to knowingly and intentionally possess with intent to distribute and to distribute cocaine. Instruction 20 defined a conspiracy as a combination of two or more persons to accomplish an unlawful purpose. It stated further “mere similarity of conduct among various persons, and the fact that they may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of" }, { "docid": "23694657", "title": "", "text": "agency actions. See XII R.156-57, 164. On this appeal Irwin argues that the proper test for materiality is whether the statement was capable of inducing “payment” or “of influencing a determination or decision required to be made.” Consequently he argues that his conviction must be reversed because the district court’s instruction permitted the jury to make a finding of materiality based on some “trivial bureaucratic response” to the statement in the grant application. (Brief of Appellant at 40-41). In Gonzales v. United States, supra, 286 F.2d at 122, we held that the test for materiality is whether the falsification “has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made.” See also United States v. Radetsky, supra, 535 F.2d at 572 n.l7a (court found that a test using the word “action” was “parallel” to the test enunciated in Gonzales); United States v. East, 416 F.2d 351, 353 (9th Cir.) (test is “whether the falsification is calculated to induce action or reliance by an agency”). The form of an instruction is a matter committed to the discretion of the trial court and there is no requirement that the court adopt the exact language of a requested instruction, provided that the issues of the case are adequately covered. United States v. Nolan, 551 F.2d 266, 274-75 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191; United States v. Hall, 536 F.2d 313, 330 (10th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285; United States v. Newson, 531 F.2d 979, 983 (10th Cir.). We are satisfied that the change was not in error and that it was not prejudicial to the defendant to use the word “action” in lieu of “payment.” We also must reject defendant’s claim that the Government failed to prove the materiality of the false statement. Shirley Marshall, the senior civil engineer who reviewed Delta’s application, testified in depth about the EDA review process for grant applications. Marshall was asked about the effect on EDA of an applicant’s acknowledgment" }, { "docid": "1683071", "title": "", "text": "1052-53 (10th Cir.1981); United States v. Hoopes, 545 F.2d 721 (10th Cir.1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2675, 53 L.Ed.2d 270 (1977): However the instructions submitted by defendant need not be given in the form requested, if the issues of the case are adequately covered in the charge. United States v. Nolan, 551 F.2d 266, 274-75 (10th Cir.1977), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977); United States v. Newson, 531 F.2d 979, 983 (10th Cir.1976). The sufficiency of the instructions is not determined by the giving or omission of particular instructions but by viewing the charge as a whole. United States v. Burns, 624 F.2d 95, 105 (10th Cir.1980), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980); United States v. Westbo, 576 F.2d 285, 289 (10th Cir.1978); United States v. Beitscher, 467 F.2d 269, 273 (10th Cir.1972). 701 F.2d at 858. X. Kapnison contends that the evidence was insufficient to warrant a conviction on Counts V, VI, VIII, X, XII, XIV, XV, XVI, XVII, and XVIII, under which he was charged with violating 18 U.S.C.A. § 215 (Section 215) and 18 U.S.C.A. § 656 (Section 656). Kapnison does not challenge the sufficiency of the evidence as to Counts VI, IX, XI, and XIII under which he was charged with violating Section 215. In United States v. Twiford, 600 F.2d 1339, 1343 (10th Cir.1979), we set forth the statutory elements of both a section 656 and a section 215 violation: The statutory elements of a section 656 misapplication violation are: (1) the willful (2) misapplication (3) of money, funds, or credits (4) of a federally protected bank ... the elements of a section 215 offense are: (1) the receiving or consenting to receive (2) a fee, commission, gift, or thing of value (3) for procuring or attempting to procure (4) a loan (or cer tain other benefits) from a federally protected bank. In reviewing Kapnison’s challenge to the sufficiency of the evidence, we must view all the evidence, both direct and circumstantial in the light most favorable to the government," }, { "docid": "21546470", "title": "", "text": "withdrawal on the previous day, and we are unpersuaded that there was proof that Fox made any serious attempt to renounce his participation in the overall conspiracy. In any event, even an effective withdrawal would exonerate Fox only for future crimes the remaining conspirators might commit. United States v. Gonzalez, 797 F.2d 915, 916-17 (10th Cir.1986). We are convinced that the evidence, direct and circumstantial, and the reasonable inferences drawn therefrom, were sufficient to support Fox’s conviction for conspiracy to possess with intent to distribute and to distribute cocaine, as charged in Count One. IV. The Defendant’s Separate Transaction Instruction Fox argues further that the trial judge erred in refusing to give his tendered instruction on his defense theory that what “the evidence proved amounted to a series of separate transactions, not a conspiracy.” Appellant's Opening Brief at 10. Defendant cites United States v. McIntyre, 836 F.2d 467 (10th Cir.1987), and United States v. Kendall, 766 F.2d 1426 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986), inter alia, and says the law of conspiracy is confusing and that looking at the evidence as a whole, there was a critical question whether the scenario presented amounted to a conspiracy or a series of separate transactions. Id. at 12. “Where there is evidence in the record supporting his theory, a defendant in a criminal case is entitled to an instruction to the jury concerning his theory of defense and failure to so instruct is reversible error.” United States v. Jenkins, 701 F.2d 850, 858 (10th Cir.1983); see also United States v. Hopkins, 744 F.2d 716, 717 (10th Cir.1984) (en banc). However, the trial judge is given considerable discretion in tailoring and formulating the instructions. E.g., United States v. Nolan, 551 F.2d 266, 274-75 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). The court need not follow the exact language of a defense instruction as long as the court’s instructions correctly state the law and fairly and adequately cover the issues presented. United States v. Pack, 773 F.2d 261, 267 (10th" }, { "docid": "21546474", "title": "", "text": "his mere association with the conspirators, however, is enough to convict him of conspiracy.” Association alone would not be enough, under the charge given, for conviction of conspiracy; it was required instead that the conspiracy was knowingly formed and that the defendant willfully participated in the unlawful plan. Viewing the charge as a whole, we believe the jury was adequately instructed. See United States v. Orr, 825 F.2d 1537, 1542 and n. 3 (11th Cir.1987) (holding sufficient instructions similar to those given in the instant ease, although a specific buyer-seller type instruction was requested); United States v. Lively, 803 F.2d 1124, 1128-29 (11th Cir.1986) (same). But see United States v. Douglas, 818 F.2d 1317, 1320-23 (7th Cir.1987); United States v. Prieskorn, 658 F.2d 631, 636 (8th Cir.1981). “[T]he sufficiency of the instructions is not determined by giving or not giving particular instructions, but rather by viewing the instructions as a whole.” United States v. Burns, 624 F.2d 95, 105 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). In sum, we hold there was no reversible error committed by the trial judge in refusing to give the tendered instruction. V. The Travel Act Violation Fox finally argues that the evidence does not support his conviction under the Travel Act, 18 U.S.C. § 1952 (1988), and therefore that the district court erred in refusing to grant his motion for judgment of acquittal on that count at the close of the government’s case. He says that the government proved only sporadic, casual involvement in an unlawful activity, a series of separate transactions, instead of a continuous course of unlawful conduct, and therefore that the evidence fails to establish the requisite “business enterprise.” See 18 U.S.C. § 1952(b)(1) (1988); United States v. Kendall, 766 F.2d 1426, 1434 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986). Fox was charged in Count Six of the indictment with willfully and knowingly traveling in interstate commerce with the intent to “promote, carry on and facilitate the promotion and carrying on of an unlawful activity, to wit:" }, { "docid": "1683070", "title": "", "text": "F.2d 764 (10th Cir.1975) [quoting Aiuppa v. United States, 393 F.2d 597 (10th Cir.1968), cert. denied, 404 U.S. 871, 92 S.Ct. 60, 30 L.Ed.2d 114 (1971)]. IX. Kapnison contends that the district court improperly instructed the jury and thereby prejudiced his right to a fair trial. We disagree. We have reviewed the instructions in detail and hold that the district court adequately and properly instructed the jury. The district court instructed on Kapnison’s defenses, and although the wording of the instructions may not have paralleled Kapnison’s proffered instructions, the instructions of the district court were adequate. In United States v. Jenkins, 701 F.2d 850 (10th Cir.1983), we stated: Where there is evidence in the record supporting his theory, a defendant in a criminal case is entitled to an instruction to the jury concerning his theory of defense and failure to so instruct is reversible error. See United States v. Felsen, 648 F.2d 681, 685-86 (10th Cir.1981), cert. denied, 454 U.S. 861, 102 S.Ct. 317, 70 L.Ed.2d 159 (1981); United States v. Posey, 647 F.2d 1048, 1052-53 (10th Cir.1981); United States v. Hoopes, 545 F.2d 721 (10th Cir.1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2675, 53 L.Ed.2d 270 (1977): However the instructions submitted by defendant need not be given in the form requested, if the issues of the case are adequately covered in the charge. United States v. Nolan, 551 F.2d 266, 274-75 (10th Cir.1977), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977); United States v. Newson, 531 F.2d 979, 983 (10th Cir.1976). The sufficiency of the instructions is not determined by the giving or omission of particular instructions but by viewing the charge as a whole. United States v. Burns, 624 F.2d 95, 105 (10th Cir.1980), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980); United States v. Westbo, 576 F.2d 285, 289 (10th Cir.1978); United States v. Beitscher, 467 F.2d 269, 273 (10th Cir.1972). 701 F.2d at 858. X. Kapnison contends that the evidence was insufficient to warrant a conviction on Counts V, VI, VIII, X, XII, XIV, XV, XVI, XVII," }, { "docid": "21554424", "title": "", "text": "with regard to the years in which the taxable income was allegedly accrued, defendant argues, was a material amendment of the indictment resulting in prejudicial error. Defendant also argues that by omitting the year 1981 because of insufficient evidence, the court in effect acquitted him for that year and impliedly instructed the jury to find him guilty for the remaining years. A constructive amendment of an indictment “occurs when the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.” United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986). This court has consistently stated, however, that withdrawing a part of the charge from jury consideration does not work an amendment if nothing is thereby added to the indictment and the remaining allegations charge an offense. United States v. Whitman, 665 F.2d 313, 316 (10th Cir.1981); United States v. Burns, 624 F.2d 95, 104-05 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980); United States v. Griffin, 463 F.2d 177, 178 (10th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 344, 34 L.Ed.2d 254 (1972). In deleting the year 1981 in its instruction on the conspiracy charge, the district court did not impermissibly amend the indictment. See United States v. Gunter, 546 F.2d 861, 868-69 (10th Cir.1976), cert. denied, 431 U.S. 920, 97 S.Ct. 2189, 53 L.Ed.2d 232 (1977). The essence of the conspiracy count was an illicit agreement between defendant and Linda Schaffer to conceal, between October of 1982 and January of 1983, taxable income of the Schaf- fers for the years 1978 through 1982. In which of those years the taxable income was accrued was not material to the conspiracy charge, and the trial court so instructed the jury. The deletion of the year 1981 clearly did not change the meaning of the charge from that presented to the grand jury or alter the government’s" }, { "docid": "21554425", "title": "", "text": "States v. Burns, 624 F.2d 95, 104-05 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980); United States v. Griffin, 463 F.2d 177, 178 (10th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 344, 34 L.Ed.2d 254 (1972). In deleting the year 1981 in its instruction on the conspiracy charge, the district court did not impermissibly amend the indictment. See United States v. Gunter, 546 F.2d 861, 868-69 (10th Cir.1976), cert. denied, 431 U.S. 920, 97 S.Ct. 2189, 53 L.Ed.2d 232 (1977). The essence of the conspiracy count was an illicit agreement between defendant and Linda Schaffer to conceal, between October of 1982 and January of 1983, taxable income of the Schaf- fers for the years 1978 through 1982. In which of those years the taxable income was accrued was not material to the conspiracy charge, and the trial court so instructed the jury. The deletion of the year 1981 clearly did not change the meaning of the charge from that presented to the grand jury or alter the government’s theory of the case, and did not result in any prejudice to defendant. See United States v. Cook, 745 F.2d 1311, 1316-17 (10th Cir.1984), cert. denied, 469 U.S. 1220, 105 S.Ct. 1205, 84 L.Ed.2d 347 (1985). Defendant’s argument that the trial court in effect acquitted him for the year 1981 and impliedly instructed the jury to convict him for the remaining years likewise is unavailing. His argument disregards the essential element of the conspiracy count, which was an agreement to conceal taxable income. It is on that basis that defendant stands convicted, not on a finding by the jury of a specific time frame in which the income was accrued. The trial court properly instructed the jury on the conspiracy count. III. Defendant’s final allegation of error, raised in his pro se supplemental brief, is that the trial court failed to comply with the Court Reporter’s Act, 28 U.S.C. § 753, by not providing a complete trial transcript. Such failure, he argues, resulted in the unavailability of material and crucial portions of the transcript for" }, { "docid": "22967315", "title": "", "text": "jury was proper. We similarly find no error in the district court’s decision to omit an instruction on simple possession, a lesser included offense of possession with intent to distribute. See United States v. Burns, 624 F.2d 95, 104 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). A trial court should give an instruction on a lesser included offense if the jury could rationally convict the defendant on the less er included charge and acquit him of the greater. See Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973); United States v. Jackson, 726 F.2d 1466, 1470 (9th Cir.1984) (per curiam); 2 C. Wright, supra, § 498, at 795. In this case, our review of the record confirms the district court’s conclusion that a simple possession instruction was not required. See United States v. Johnson, 734 F.2d 503, 505-06 (10th Cir.1984) (per curiam); Fitzgerald v. United States, 719 F.2d 1069, 1071-72 (10th Cir.1983). In particular, we note the large quantity of cocaine (valued at $18-20 mil lion) found in the Sepulveda apartment, for which Espinosa had two sets of keys to the double locks and which contained little furniture and clothing, no food in the refrigerator, and no kitchen utensils, telephone, or television. In view of the evidence suggesting that two other unlocatable persons who paid the rent may also have had access to the apartment, the jury was entitled to conclude that Espinosa did not constructively possess the cocaine in the apartment. However, assuming that there was constructive possession, the jury could not rationally conclude that there was no intent to distribute. See United States v. Silla, 555 F.2d 703, 706-07 (9th Cir.1977). The record is devoid of evidence that would suggest that Espinosa might have owned only a portion of the 69 pounds of cocaine found there. See United States v. Payne, 805 F.2d 1062, 1067 (D.C.Cir.1986); United States v. Thornton, 746 F.2d 39, 47-48 (D.C.Cir.1984); United States v. King, 567 F.2d 785, 790-91 (8th Cir.1977), cert. denied, 435 U.S. 945, 98 S.Ct. 1527, 55" } ]

[ { "docid": "22663341", "title": "", "text": "of future persecution. Likewise, he denied withholding of removal on the ground that Zehatye did not demonstrate a clear probability or real likelihood that she would be persecuted if she returned to Eritrea. Additionally, he found no evidence of torture to support a claim for relief under CAT. The BIA summarily affirmed and Zehatye filed this timely appeal, which challenges only the denial of asylum and withholding of removal. When the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). The decision that an alien has not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under the substantial evidence standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we must uphold the IJ’s determination if it is supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). III. A. Asylum Zehatye claims that she is eligible for asylum because she was persecuted in Eritrea on account of her religion. To qualify for asylum, an applicant must demonstrate that he or she has suffered past persecution or has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). Specifically, an alien is eligible for asylum if he or she can show past persecution on account of [race, religion, nationality, membership in a particular social group, or political opinion]. Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or the applicant could avoid future persecution by relocating to another part of the applicant’s country. An applicant may also qualify for asylum by actually showing a well-founded fear of future persecution," } ]

[ { "docid": "1034867", "title": "", "text": "asylum, that the IJ violated his due process rights by failing to provide a Punjabi translator and by conducting the immigration hearing in an egregious and biased manner, and that the BIA erred by affirming without opinion. Alyas does not argue that the IJ or the BIA erred in denying relief under the Convention Against Torture, and only summarily mentions any request for a review of the decision to deny the withholding of removal. Alyas also failed to argue before the BIA that the IJ erred in denying the withholding of removal and relief under the Convention Against Torture. (Admin. R. at 28-34.) Because Alyas does not argue these issues in his brief, we do not consider them as part of the petition for review. See Falaja v. Gonzales, 406 F.3d 1076, 1085 (8th Cir.2005) (holding that petitioner who did not argue on appeal that IJ erred by denying relief under the Convention Against Torture waived that argument); Gebremaria v. Ashcroft, 378 F.3d 734, 736 n. 4 (8th Cir.2004) (holding that court of appeals lacks jurisdiction to decide an issue not first presented to the BIA). II. We review the IJ’s determination that Alyas is not eligible for asylum for substantial evidence on the record as a whole. Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.2004). We will not reverse the IJ’s decision unless the evidence is so compelling that no reasonable fact finder could fail to find eligibility for asylum. Id. At the Attorney General’s discretion, asylum may be granted to an alien who meets the statutory definition of a refugee. See 8 U.S.C. §§ 1158(b) and 1101(a)(42)(A) (2000). In order to be statutorily eligible, Alyas is required to demonstrate past persecution or a well-founded fear of future persecution on account of one of five enumerated grounds — in Alyas’s case, his political opinion. A well-founded fear is one that is both “subjectively genuine and objectively reasonable.” Ismail v. Ashcroft, 396 F.3d 970, 973 (8th Cir.2005). Where an alien has established past persecution, we presume that the alien also has a well-founded fear of future persecution unless the" }, { "docid": "11885563", "title": "", "text": "BRORBY, Circuit Judge. Arturo Vicente-Elias and Jaime Vicente-Lopez petition for review of final orders for their removal to Guatemala. These cases involve very similar facts and legal issues and we have elected to resolve them together in a single decision. As explained below, we deny both petitions for review. Mr. Vicente-Elias applied for asylum, restriction on removal, and relief under the Convention Against Torture (CAT). After an Immigration Judge denied relief, he appealed the first two matters to the Board of Immigration Appeals. The BIA affirmed without opinion under 8 C.F.R. § 1003.1(e)(4), making the IJ’s decision on asylum and restriction on removal the final agency determination for purpose of our review under 8 U.S.C. § 1252(a)(1). Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir.2006). Mr. Vicente-Lopez also unsuccessfully applied for asylum, restriction on removal, and CAT relief, but in his case a BIA member issued an opinion under 8 C.F.R. § 1003.1(e)(5), which serves as the final agency determination, though we may consult the IJ’s decision to explicate the BIA’s analysis. Uanreroro, 443 F.3d at 1203-04. Mr. Vicente-Lopez has limited his petition for review to the denial of restriction on removal. Economic Deprivation as Persecution Petitioners are of Mayan ancestry and speak the Quiche language, which puts them at an economic disadvantage in Guatemala, where Spanish-speakers refuse to employ native Americans who communicate in indigenous languages. Petitioners’ resultant poverty, rather than the imposition or threat of physical harm, underlies their claims for relief from removal. Because both asylum and restriction on removal turn on a showing of persecution, see Wiransane v. Ashcroft, 366 F.3d 889, 892-93 (10th Cir.2004), the standard for determining when economic deprivation rises to the level of persecution is a primary focus of both petitions. The BIA recently clarified that standard in In re T-Z-, 24 I. & N. Dec. 163 (BIA 2007), issued after the IJ decisions in petitioners’ cases but while their administrative appeals were pending. The BIA noted it had at times referred to (1) “deliberate imposition of substantial economic disadvantage,” a formulation used by the Ninth Circuit in Kovac v. INS," }, { "docid": "19750054", "title": "", "text": "PER CURIAM. Sara Kassa Kebede entered the United States on an Ethiopian passport in July 2001 and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) on behalf of herself and her son, Michael Tesfaye Yig-ezu. After an evidentiary hearing, the Immigration Judge (IJ) denied all relief, finding that Kebede’s testimony as to past persecution by the Ethiopian government was not credible and, even if credible, did not establish either past persecution or a well-founded fear of future persecution if she and her son are removed to Ethiopia. The Board of Immigration Appeals (BIA) assumed without deciding that Kebede’s testimony was credible and affirmed the IJ’s decision on the merits. Petitioners seek judicial review of the BIA’s final agency action. We deny the petition for review. Petitioners first argue the BIA committed reversible error when it failed to review the IJ’s adverse credibility find ing. We review the BIA’s final agency action, not alternative rulings of the IJ that were not reviewed by the BIA nor necessary to its decision. See Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir.2006). Occasionally, the BIA’s failure to address a disputed credibility issue will leave us unable to discern the BIA’s analysis, as in El-Sheikh v. Ashcroft, 388 F.3d 643, 648 (8th Cir.2004). Then, of course, we must remand. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). But here, the BIA assumed petitioners’ testimony was credible in finding insufficient proof of past persecution or a well-founded fear of future persecution. Therefore, we review only the BIA’s persecution analysis. Petitioners next argue that Kebede presented sufficient credible, corroborated, detailed evidence of past persecution and a well-founded fear of future persecution. We review the BIA’s contrary findings under the substantial evidence standard, upholding the agency’s decision unless the evidence “was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Kebede testified that, beginning in 1997, she supported an opposition political party, the All-Amhara" }, { "docid": "23579201", "title": "", "text": "voluntarily depart, and thus the IJ denied voluntary departure. In a per curiam order, the BIA affirmed the IJ’s credibility finding and held that the incidents described by the Quomsiehs were insufficient — singularly or cumulatively — to rise to the level of persecution. The BIA further held that the Quomsiehs demonstrated a subjective fear of returning to the West Bank but had failed to show their fear was objectively reasonable. The Quomsiehs contend on appeal that (1) the IJ and BIA erred in denying their application for asylum, withholding of removal, and protection under CAT because they established past persecution and a well-founded fear of future persecution, (2) the record evidence supports a finding that they would more likely than not suffer torture if removed, and thus they are entitled to relief under CAT, and (3) the BIA failed to review the IJ’s denial of voluntary departure, therefore the matter should be remanded to the BIA for proper consideration. We review a BIA’s factual decision under the substantial evidence standard, reversing where petitioners demonstrate “that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner[s].” Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.2005); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”). Where, as here, the BIA adopts the IJ’s decision and adds its own reasoning, we review both decisions together. See Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). Asylum may be granted to a refugee. 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as a person who is outside his native country and is unable or unwilling to return to his native country “because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “A well-founded fear is one that is both subjectively genuine and objectively reasonable.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997). Subjectively, the petitioner must demonstrate that" }, { "docid": "22583005", "title": "", "text": "that he suffered persecution or had objectively reasonable grounds for fearing persecution: his fine did not constitute economic persecution, he had avoided harm for over eleven years after it was assessed, and his wife and two children had remained in China unharmed during the intervening period. He was ineligible for withholding of removal under the INA, the BIA concluded, because an applicant for withholding must sustain a higher burden than for asylum. See 8 U.S.C. § 1231(b)(3); Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Likewise, He had not met the standard for being eligible for withholding of removal under the CAT, because he had not shown that it was “more likely than not” that he would face torture if he were returned to China. 8 C.F.R. § 1208.16(c)(2). He filed a timely petition for review. II. Discussion Our review of the BIA’s determination that an applicant has not established eligibility for asylum is “highly deferential.” Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006). We will affirm the BIA’s decision if it is supported by substantial evidence and may only grant a petition for review “if the applicant shows that the evidence compels the conclusion that the asylum decision was incorrect.” Id. We are without jurisdiction to hear arguments that a petitioner has not exhausted by raising and arguing in his brief before the BIA. See 8 U.S.C. § 1252(d)(1); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc) (per curiam). A. Substantial evidence supports the BIA’s decision A reasonable factfinder would not be compelled to find either that He offered resistance to China’s one-child policy or that he suffered persecution. Therefore, He’s petition fails on each independent ground. 1. Resistance He argued to the BIA that he engaged in resistance to China’s coercive family planning program by refusing to pay all of the fíne he was assessed. The BIA rejected this argument on the ground that He’s partial payment of the fine did not constitute “other resistance.” We agree. He testified that he would have paid all the fine if he were able and that" }, { "docid": "22433806", "title": "", "text": "We review factual findings, on the other hand, for substantial evidence. Halim v. Holder, 590 F.3d 971, 975 (9th Cir.2009). Under the substantial-evidence standard, “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. We will uphold the agency’s determination “if it is supported by reasonable, substantial, and probative evidence in the record.” Id. (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006)). We review the BIA’s denial of a motion to reopen for abuse of discretion. Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.2010). We cannot affirm the BIA or IJ on a ground upon which it did not rely. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.2010). In other words, we “must decide whether to grant or deny the petition for review based on the Board’s [or IJ’s] reasoning rather than our own independent analysis of the record.” Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004). Ill The BIA and IJ correctly afforded Ali the presumption of a well-founded fear of persecution. But their finding that the Government had rebutted that presumption is not supported by substantial evidence because they failed to make an individualized determination of how the changed country conditions in Fiji impacted Ali’s specific harms and circumstances. In addition, the BIA abused its discretion when it denied Ali’s motion to reopen because it failed to analyze the effect of the 2006 coup on Ali’s presumption of a well-founded fear of persecution. A The petitioner bears the burden of establishing his eligibility for asylum. 8 C.F.R. § 1208.13(a). To satisfy this burden, an alien must show he is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [his country of nationality] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). An alien who has suffered past persecution is presumed to have a well-founded fear of persecution. 8 C.F.R. § 1208.13(b)(1). The Government" }, { "docid": "22339796", "title": "", "text": "the gang, one or two were killed, others were hiding in Honduras, and some fled to the United States. Ramos was afraid that MS-13 members would kill him, but he never went to the police for help. Two of Ramos’ brothers, ages nineteen and twenty, remained in Puerto Cortes. The MS-13 did not bother the nineteen-year old, but started looking for the twenty-year old after Ramos fled. Ramos’ twelve-year old brother lives with his parents, but has not had problems with the gang because he is too young. A sixteen-year old sister also lives with Ramos’ parents. The IJ found Ramos credible, but, even after crediting his testimony as true, denied asylum, withholding of removal, and protection under the CAT. The IJ held that Ramos could not establish eligibility for asylum or withholding because he did not face persecution on account of his membership in a cognizable social group or any political opinion. Alternatively, the IJ held that Ramos did not suffer past persecution or have a well-founded fear of future persecution. The IJ further denied CAT relief because Ramos did not face a clear probably of torture in Honduras. The BIA affirmed in a summary disposition. Ramos timely petitions for review of the denial of asylum and withholding of removal, but not the denial of CAT relief. II. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). When, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. 8 C.F.R. § 1003.1(e)(4)(ii); Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir.2006) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review the IJ’s legal determinations de novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). The IJ’s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we review the IJ’s findings of fact for substantial evidence. Halaim, 358 F.3d at 1131. Additionally, “[w]e accept [the petitioner’s] testimony as true when, as here, the IJ found [him] to be credible.” Id. (citing Salazar-Paucar v." }, { "docid": "22944869", "title": "", "text": "PER CURIAM: Petitioner Ritvan Mehmeti, a native and citizen of Abania, through counsel, seeks review of the Board of Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“U”) decision denying his application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). In his petition, Mehmeti first argues that the IJ erred in denying his application for asylum based on its finding that he did not have a well-founded fear of persecution because the country conditions in Abania had changed. He argues that the IJ erred in relying solely on reports prepared by the U.S. Department of State in determining that the conditions in Albania had changed. Because he established a well-founded fear of persecution, Mehmeti argues, the IJ also erred in denying his application for withholding of removal. Next, Mehmeti argues that the BIA erred in denying his request for asylum based solely on the severity of his past persecution. Finally, Mehmeti argues that the BIA erred in denying his request for CAT relief, submitting that the BIA failed to show that he would less likely than not be tortured if returned to Albania. We review only the BIA’s decision, except where it expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). To the extent that the BIA adopts the IJ’s reasoning, we review the IJ’s decision as well. Id. Here, we will review only the BIA’s decision because it did not expressly adopt the IJ’s decision or its reasoning. See id. We review the BIA’s factual determinations under the highly deferential substantial-evidence test and “must affirm the BIA’s decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. at 1283-84 (internal quotation marks omitted). We can reverse a finding of fact by the BIA “only when the record compels a reversal; the mere fact that the record may support a contrary conclusion" }, { "docid": "22786837", "title": "", "text": "D.W. NELSON, Senior Circuit Judge: Afroza and Khandker Hasan, husband and wife, and native citizens of Bangladesh, petition for review of the Board of Immigration Appeals’ denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found that the Hasans had failed to establish that their past persecution was on account of an enumerated ground, and therefore dismissed their claims for asylum and withholding of removal. The IJ also found that the Hasans had failed to establish that, upon their return to Bangladesh, they were more likely than not to experience torture with the consent or approval of government officials acting in their official capacity, and therefore, denied them relief under CAT. The Board of Immigration Appeals (“BIA”) affirmed the decision of the IJ without opinion. We have jurisdiction pursuant to the Immigration and Nationality Act (“INA”) § 242(a)(1), 8 U.S.C. § 1252(a)(1). We find that substantial evidence supported the IJ’s conclusion that the Hasans had not established eligibility for CAT relief. However, the IJ erred in concluding that the Hasans had not established that their past persecution was on account of political opinion. Accordingly, we grant the petition for review and reverse and remand to the BIA for further proceedings consistent with this opinion. I. Factual and Procedural History The following facts are drawn from the Hasans’ testimony at their asylum hearing, as well as their written application for asylum. Because the IJ did not make an adverse credibility finding, we accept the Hasans’ testimony as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004). A. The Hasans’ Experiences in Bangladesh Afroza Hasan (hereinafter “Afroza,” in order to distinguish her from her husband “Khandker”), the lead petitioner, worked as a reporter for Purnima, a local newspaper in Bangladesh. She primarily reported on women’s issues in the region in which she lived. Afroza was a member of the Bangladesh Nationalist Party (“BNP”), one of Bangladesh’s major political parties. She was also a member of Mohila Parish-ad, a women’s organization that served distressed women in the" }, { "docid": "23577109", "title": "", "text": "forms of relief on June 26, 2006, and granted voluntary departure. The BIA dismissed the appeal on December 13, 2007, finding that neither Zhao nor Duan had shown past persecution or a well-founded fear of future persecution to be eligible for asylum. It also denied withholding of removal and CAT relief. II. Analysis We have jurisdiction to review a final order of the Board of Immigration Appeals (“BIA”) under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed the IJ’s decision pursuant to Matter ofBurbano, 20 I. & N. Dec. 872 (B.I.A.1994), and did not express any disagreement with it, we review the IJ’s decision as if it were that of the Board. Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir.2005) (en banc). We review findings of fact for substantial evidence and uphold the denial of asylum if the decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (internal quotation marks omitted). Reversal is warranted, however, if the evidence in the record compels a reasonable factfinder to conclude that the IJ’s decision is incorrect. Zhou, 437 F.3d at 865. In this petition for review, Zhao and Duan raise only their asylum claims. They are eligible for asylum if they show that they are “unable or unwilling to return to ... [their] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1158-59 (9th Cir.1999). A finding of a “well-founded fear of persecution” requires both a showing of “subjectively genuine” and “objectively reasonable” fear. Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000) (internal quotation marks omitted). The subjective component is satisfied by credible testimony that the applicant genuinely fears persecution. See id. The objective prong is satisfied either by a rebuttable presumption arising from a showing of past persecution, or by a showing of “a good reason to fear future persecution” based on “credible, direct, and specific evidence in the record of facts" }, { "docid": "23025365", "title": "", "text": "LEAVY, Circuit Judge. Ferida Kasnecovic, a nátive and citizen of Yugoslavia, petitions for review of a final order of the Board of Immigration Appeals (BIA) denying her applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT). An Immigration Judge (IJ) found that Kasneeovic’s asylum application was untimely and that Kasne-covic did not establish extraordinary circumstances to excuse that untimeliness. See 8 U.S.C. § 1158(a)(2)(B), (D) (2000). As an alternative finding, the IJ denied Kasnecovie’s asylum claim on the merits, based on an adverse credibility determination. Finally, the IJ denied Kasnecovic’s petitions for withholding of removal and CAT relief. We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(1). Because substantial evidence supports the IJ’s adverse credibility determination, we deny the petition as to the withholding of removal and CAT claims and dismiss the petition as to the asylum claim. STANDARD OF REVIEW We review the BIA’s decision to determine whether it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). Where the BIA affirms an IJ’s order without opinion, we review the IJ’s order as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). Factual findings underlying the IJ’s order are reviewed for substantial evidence. Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). FACTS AND PRIOR PROCEEDINGS Kasnecovic entered the United States on December 22, 1998. At the time of entry she told the Immigration and Naturalization Service (INS) interviewer that she was born in Montenegro, Yugoslavia, and gave a specific location, including a zip code equivalent, as her permanent residence in Montenegro. She also told the interviewer that she had two relatives in the United States, an aunt, Osman Kalivo-ri, who lived in Staten Island, New York, and a sister, Dija Kasnecovic, living in Queens, New York. In December 1999, Kasnecovic applied for Temporary Protected Status (TPS), stating that she was born in Kosovo, Yugoslavia, and was a national of Kosovo Province. The INS" }, { "docid": "23086997", "title": "", "text": "does not express any disagreement with any part of the immigration judge’s decision, but instead cites Burbano, the BIA adopts his decision in its entirety”). In the alternative, the BIA found that Maharaj’s claim failed because the presumption of a well-founded fear of persecution had been rebutted by evidence of changed circumstances in Fiji. The BIA interpreted Maharaj’s motion to reopen as a motion to supplement the record, which it denied because the fax cover sheet was both unauthenticated and not convincing. Maharaj again petitioned the BIA to reopen his case based on the coup that occurred in Fiji in May 2000. The BIA denied Maharaj’s motion to reopen on October 8, 2003, noting that evidence of the May 2000 coup “was before the Board when we issued our prior decision.” Further, the BIA held that because Maharaj was ineligible for asylum on firm resettlement grounds, the evidence of changed country conditions was only relevant to Maharaj’s withholding of deportation and Convention Against Torture (CAT) claims. The BIA concluded that the evidence was not sufficient to establish a prima facie case of eligibility for withholding of deportation or CAT relief and therefore reopening was not warranted. Maharaj timely appeals the BIA decision affirming the IJ’s denial of asylum and withholding of deportation. Maharaj did not challenge the BIA’s denial of his motion to reopen in his opening brief and thus has waived appeal on that issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (holding that a petitioner’s failure to address the BIA’s denial of a motion to reopen in the argument portion of his opening brief on appeal waived the issue). II A finding of “firm resettlement” is a factual determination that we review under the deferential substantial evidence standard. See Nahrvani v. Gonzales, 399 F.3d 1148, 1151-52 (9th Cir.2005) (applying substantial evidence standard to firm resettlement determination). Other circuits agree. See Sall v. Gonzales, 437 F.3d 229, 232 (2d Cir.2006) (per curiam); Firmansjah v. Gonzales, 424 F.3d 598, 601 (7th Cir.2005) (citing Diallo v. Ashcroft, 381 F.3d 687, 695 (7th Cir.2004)); Salazar v. Ashcroft, 359 F.3d" }, { "docid": "22160715", "title": "", "text": "and CAT claims. The IJ based his adverse credibility finding, in relevant part, on Loho’s “astonishing” explanation that she did not “have time” to look into the possibility of applying for asylum during her previous visits to the United States, despite the severe mistreatment she claimed to have suffered in Indonesia. The Board of Immigration Appeals (“BIA”) adopted and affirmed the IJ’s adverse credibility finding. II To be eligible for asylum, Loho must proffer sufficient credible evidence that she is unwilling or unable to return to her country of origin “ ‘because of persecution or a well-founded fear of future persecution on account of[her] race, religion, nationality, membership in a particular social group, or political opinion.’ ” Singh v. Ashcroft, 367 F.3d 1139, 1142 (9th Cir.2004) (quoting 8 U.S.C. § 1101(a)(42)(A)). We have defined persecution as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive,” but have noted that it is an “extreme concept that does not include every sort of treatment our society regards as offensive.” Mansour v. Ashcroft, 390 F.3d 667, 672 (9th Cir.2004) (internal quotation marks omitted). It is well established in this court that an alien’s history of willingly returning to his or her home country mili tates against a finding of past persecution or a well-founded fear of future persecution. See, e.g., Kumar v. Gonzales, 439 F.3d 520, 524 (9th Cir.2006) (denying a petition for review where “[t]he IJ stated that Mr. Kumar’s voluntary return to Fiji was indicative of Kumar’s own belief that it would be safe and appropriate for him to live in Fiji”); Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th Cir.2005) (noting that “return trips can be considered as one factor, among others,” in determining whether an applicant has a well-founded fear of future persecution). As the foregoing precedent demonstrates, we have considered a petitioner’s voluntary return to his or her home country solely in the context of assessing whether such petitioner suffered past persecution or possessed a well-founded fear of future persecution. In this ease, however, the" }, { "docid": "22648822", "title": "", "text": "§ 1252(a)(1). See Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). We have jurisdiction to review his CAT claim under § 2242(d) of the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-822 (1998) (codified at 8 U.S.C. § 1231). See also 8 C.F.R. § 1208.18(e) (“Judicial review of claims for protection from removal under Article 3 of the Convention Against Torture.”). STANDARD OF REVIEW Where, as here, the BIA adopts the immigration judge’s decision and also adds its own reasons, we review both decisions. See Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000) (citing Chand v. INS, 222 F.3d 1066, 1072 n. 7 (9th Cir.2000)). To the extent that the BIA simply affirms the immigration judge, we review the decision of that judge as if it were the final agency action. See Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). As to the BIA’s additional findings, we review those findings for what they are. — the final agency action. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). We review de novo the BIA’s interpretation of purely legal questions. See Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001). Factual findings underlying the agency’s final order, however, are reviewed for substantial evidence. See Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004). The agency’s eligibility and entitlement determinations must be upheld if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Gormley, 364 F.3d at 1176 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). ANALYSIS Nuru contends that the record compels the conclusion that the BIA erred in denying his applications for asylum, withholding of removal, and relief under CAT. He alleges that he was tortured by the Eritrean military and that he was persecuted on account of his political opinion; he also asserts that he faces further torture and persecution if he is returned to Eritrea. These allegations and the underlying facts on which they are based support" }, { "docid": "22907647", "title": "", "text": "IJ found him not to be a credible witness. The IJ also held that Hanna had not shown evidence of persecution, and asserted that there was no longer a viable threat against Hanna because Saddam Hussein and the Ba’ath party were no longer in power. The IJ held that Hanna did not qualify for withholding of removal or for CAT relief. The BIA affirmed the IJ’s decision on July 23, 2004. The BIA “assumed arguen-do” that Hanna suffered past persecution, but held that Hanna no longer had a well-founded fear of persecution because coalition forces had taken control of Iraq. The BIA also held that Hanna failed to establish that “any persecution he may have suffered compels a grant of asylum as a matter of humanitarian concerns.” The BIA upheld, without comment, the IJ’s decision regarding withholding and CAT relief. The BIA did not directly address Hanna’s credibility. II. Standard of Review The BIA’s decision that an alien has not established eligibility for asylum is reviewed for substantial evidence. Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006). The BIA’s determination must be upheld if supported by reasonable, substantial, and probative evidence in the record. Lopez v. Ashcroft, 366 F.3d 799, 802 (9th Cir.2004). We also review factual findings underlying the denial of asylum for substantial evidence. Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir.2004) (en banc). The Immigration and Nationality Act explains that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). III. Adverse Credibility The IJ made an adverse credibility finding regarding Hanna. The BIA, however, did not mention this finding in its opinion. Instead the BIA assumed, without deciding, that Hanna suffered past persecution. That assumption necessarily carried with it the assumption, again without deciding, that Hanna was credible. Thus, because the BIA has expressly declined to address Hanna’s credibility, we do not decide that issue here in the first instance. See Damaize-Job v. I.N.S., 787 F.2d 1332, 1338 (9th Cir.1986) (noting that “[i]t is our practice to remand to the Board for" }, { "docid": "22648821", "title": "", "text": "prosecuted for desertion... Accordingly, he denied Nuru’s application in all respects. Nuru appealed to the BIA, which adopted and affirmed the immigration judge’s order. It additionally concluded that Nuru failed to establish that “his treatment for protesting his continued military service was disproportiona[te]ly harsh.... The respondent has not presented evidence that any punishment he will receive in the future will be dispropor-tiona[te]ly harsh on account of his political beliefs.” Nuru seeks review of the BIA’s final order of removal and denial of his application for asylum, withholding of removal, and relief under the Convention, asserting that he faces persecution and torture if he is returned to Eritrea. JURISDICTION Because Nuru’s removal proceedings began after April 1, 1997, his petition is governed by the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Aet (“IIRIRA”), Pub.L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996). See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997). We have jurisdiction over Nuru’s final removal order including the denial of asylum and withholding of removal pursuant to 8 U.S.C. § 1252(a)(1). See Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). We have jurisdiction to review his CAT claim under § 2242(d) of the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-822 (1998) (codified at 8 U.S.C. § 1231). See also 8 C.F.R. § 1208.18(e) (“Judicial review of claims for protection from removal under Article 3 of the Convention Against Torture.”). STANDARD OF REVIEW Where, as here, the BIA adopts the immigration judge’s decision and also adds its own reasons, we review both decisions. See Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000) (citing Chand v. INS, 222 F.3d 1066, 1072 n. 7 (9th Cir.2000)). To the extent that the BIA simply affirms the immigration judge, we review the decision of that judge as if it were the final agency action. See Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). As to the BIA’s additional findings, we review those findings for what they are. — the final agency action." }, { "docid": "22675840", "title": "", "text": "his wife and his alleged decision to join the CDP. Finally, the BIA “agree[d] with the Immigration Judge’s alternative finding that, even if the asylum application had been timely filed, it must be denied for lack of evidence of past persecution or a well-founded fear of future persecution.” Id. II. Discussion “Where the BIA adopts the decision of the IJ and merely supplements the IJ’s decision ... we review the decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). To establish his eligibility for asylum, an alien who does not claim past persecution must establish that he faces a “reasonable possibility of future persecution” based on a statutorily recognized characteristic. Kyaw Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir.2006) (internal quotation marks omitted); 8 U.S.C. § 1101(a)(42) (including political opinion among these characteristics). To establish his eligibility for withholding of removal, such an applicant “must show that it is more likely than not that [ ]he would suffer future persecution ... if returned to the country of removal.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 105 (2d Cir.2006) (internal quotation marks omitted). Finally, to establish eligibility for relief under the Convention Against Torture (“CAT”), such an applicant must show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir.2004) (quoting 8 C.F.R. § 208.16(c)(2)). We review the agency’s factual findings — including any adverse credibility finding — for substantial evidence, treating these as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the agency’s legal conclusions de novo. See, e.g., Jiang v. Bureau of Citizenship and Immigration Servs., 520 F.3d 132, 135 (2d Cir.2008). A. Timeliness of Leng’s application for asylum Leng contends that the IJ did not “fair[ly] assess[ ] ... the evidence in the record” when evaluating his claim that changed and extraordinary circumstances justified his failure to apply for asylum" }, { "docid": "22629212", "title": "", "text": "DeMOSS, Circuit Judge: Petitioners, citizens of Indonesia, were ordered removed by the Immigration and Naturalization Service (“INS”). The Immigration Judge (“IJ”) dismissed their applications for asylum and withholding of removal. The Board of Immigration Appeals (“BIA”) affirmed without opinion. Petitioners contend that fhe IJ erred by denying their applications for asylum. They also assert that the IJ erred by failing to address their claims for relief under the Convention Against Torture (“CAT”). We hold that the IJ committed legal error and therefore reverse and re- raand for further proceedings not inconsistent with this opinion. BACKGROUND Petitioners Jopie Eduard (“Eduard”) and his wife, Yuliana Pakkung (“Pak-kung”), are natives and citizens of Indonesia. Pakkung entered the United States in June 1989, as a nonimmigrant visitor, with permission to remain for six months. Eduard entered the United States in June 1991, as a nonimmigrant crewman, with permission to remain for 29 days. The INS initiated removal proceedings against Pakkung and Eduard in November 2000. Pakkung and Eduard conceded re-movability, and applied for asylum and withholding of removal. The IJ held a consolidated hearing on April 23, 2001. The IJ issued an oral decision denying Eduard’s and Pakkung’s applications for asylum, and denying withholding of removal pursuant to INA § 241(b)(3)(B). 8 C.F.R. § 208.16(b) (2004). The IJ reasoned that neither applicant had established past persecution or a well-founded fear of future persecution. The IJ did not discuss whether removal could be withheld under the CAT. Id. § 208.16(c). A member of the BIA, acting for the board, affirmed the IJ’s decision without opinion. Eduard and Pakkung timely filed this appeal. DISCUSSION Because the BIA summarily affirmed the opinion of the IJ, we review the factual findings and legal conclusions of the IJ. See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir.2003) (providing that the IJ’s decision is the final agency decision if the BIA summarily affirms). We must uphold the IJ’s factual findings unless we find that they are not supported by substantial evidence in the record. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir.1994). Substantial evidence is lacking only if" }, { "docid": "18239930", "title": "", "text": "SELYA, Circuit Judge. The petitioner, Marlene Lisbeth Arévalo-Girón, is a Guatemalan national. She seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying her application for withholding of removal. After careful consideration, we deny the petition. The petitioner entered the United States on November 1, 1997, without inspection. Some ten years later, the Department of Homeland Security discovered her presence and initiated removal proceedings against her. See 8 U.S.C. § 1182(a)(6)(A)®; id. § 1229a(a)(2). Before the immigration judge (IJ), the petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United States Convention Against Torture (CAT). In support, she asserted that if returned to Guatemala, she would face persecution on account of her status as either a single woman with perceived wealth or a former “child of war.” The IJ determined that her claim for asylum was time-barred; denied withholding of removal on the ground that she had failed to demonstrate a likelihood of persecution in Guatemala on account of a statutorily protected status; and dismissed her entreaty for CAT relief because she had not shown any governmental involvement in the feared harm. The BIA affirmed the IJ’s decision. This timely petition for judicial review followed. In it, the petitioner challenges only the denial of withholding of removal. Because the BIA added its own gloss to the IJ’s reasoning, we review the two decisions as a unit. See Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir.2009). In conducting that review, we test the agency’s factual findings, including credibility determinations, under the familiar substantial evidence rule. Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir.2011). This rule requires us to accept all factual findings that are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal quotation marks omitted). In other words, we must uphold such a finding unless the record compels a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Sompotan" }, { "docid": "23696126", "title": "", "text": "SYKES, Circuit Judge. Abdul Khan is a native and citizen of Pakistan who entered the United States with his family in 1998. They remained here after their visitors’ visas expired, and in 2003 Khan applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). His family members are derivative applicants. An Immigration Judge (“IJ”) heard the claims and denied relief, concluding that Khan’s asylum application was untimely and the delay was not excused by extraordinary circumstances; that Khan failed to show he had suffered politically motivated persecution in Pakistan; and that Khan had failed to show a clear probability that he would be persecuted or tortured if he returned to Pakistan. The Board of Immigration Appeals (“BIA”) affirmed. Khan then moved to reopen, presenting what he characterized as new evidence about his physical and mental condition that he claimed undermined the IJ’s decisions. The BIA declined to reopen the case. Khan asks us to review each of these decisions. We dismiss in part and deny in part the petitions for review. Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review the BIA’s determinations that Khan’s asylum claim was untimely and the delay was not excused by extraordinary circumstances. The REAL ID Act of 2005, Pub.L. No. 109-13, § 106(a)(1)(h), 119 Stat. 231, 310-11, permits judicial review of constitutional claims or questions of law; Khan’s challenges to the immigration agency’s timeliness and “extraordinary circumstances” determinations address only factual and discretionary issues and therefore lie outside our review jurisdiction. See Vasile v. Gonzales, 417 F.3d 766 (7th Cir.2005). We also conclude that substantial evidence supports the agency’s denial of withholding of removal and protection against removal under the CAT. Finally, to the extent we have jurisdiction to review the denial of Khan’s motion to reopen, we conclude that the BIA did not abuse its discretion in determining that Khan’s “new evidence” was neither new nor material. I. Background Khan is a Mohajir, a term used to describe Pakistanis of Indian descent. Because Mohajirs faced difficulties competing with other Pakistanis for jobs and political influence, some Mohajirs joined" } ]

[ { "docid": "1220591", "title": "", "text": "ORDER MOODY, District Judge. Jennifer A. Zygowicz, a non-party, puts before the court the question of whether service of a subpoena, pursuant to Fed. R.Civ.P. 45(b)(1), can be accomplished by certified mail. Zygowicz attests that she received, by certified mail, a subpoena to appear to be deposed on May 27, 1994. She received the subpoena on May 13, 1994, but waited until today to properly move this court to quash on the grounds that she was not served by personal delivery. The court now holds that personal service is not required by Rule 45(b)(1). Accordingly, Zy-gowicz’ motion is DENIED. In construing the Federal Rules of Civil Procedure, the court is required to “secure the just, speedy, and inexpensive determination of every action.” Fed.R.Civ.P. 1. Rule 45(b)(1) states, in relevant part: A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such per-son____ (Emphasis added). Nothing in this language suggests that in-hand, personal service is required to effectuate “delivery,” or that service by certified mail is verboten. The plain language of the rule requires only that the subpoena be delivered to the person served by a qualified person. “Delivery” connotes simply “the act by which the res or substance thereof is placed within the actual ... possession or control of another.” Black’s Law Dictionary 428 (6th ed. 1990). Where a mail carrier is a non-party more than 18 years old, certified mail may well assure the delivery foreseen by Rule 45. By way of both contrast and example, abode service, where a document is left at the served individual’s dwelling, would not assure delivery to the person. See Fed.R.Civ.P. 4(e)(1) (describing abode service for service of summons and complaint). Zygowicz does not contend that the service here failed to effect delivery to her of the subpoena. See 5A Jeremy C. Moore et al„ Moore’s Federal Practice ¶ 45.09[1] (1994) (party moving to quash subpoena bears burden of proof) [“Moore’s”]. In such" } ]

[ { "docid": "1888055", "title": "", "text": "not consider sanctions against Einsidler and his businesses for failure to comply with the subpoenas. It should be noted, however, that Einsidler and his counsel violated the fundamental principle that a subpoena cannot be ignored. See 5A Moore’s Federal Practice ¶ 45.03[6], at 45-20 to 45-21. If Einsidler genuinely believed that the subpoenas issued under New York Civil Practice Law and Rules were defective, his remedy was to move to quash. While no sanctions will be imposed at this time, the court will make a de novo determination of plaintiffs’ motion for contempt should Einsidler engage in any further dilatory tactics. Defendant’s Motion to Quash the Subpoena Duces Tecum. Defendant contends that the subpoena issued pursuant to Fed.R.Civ.P. 45(d)(1) should be quashed or modified for two reasons. First, it contends that the subpoena was improperly issued because plaintiffs did not serve a notice of deposition on Mrs. Einsidler before they obtained the subpoena. Rule 45(d)(1) provides: Proof of service of a notice to take a deposition ... constitutes a sufficient authorization for the issuance by the clerk of the district court ... of subpoenas for the persons named or described therein. Proof of service may be made by filing with the clerk ... a copy of the notice together with a statement of the date and manner of service and of the names of the persons served, certified by the person who made service.... The notice of deposition is postmarked November 6, 1984, one day after the subpoena was issued. Accordingly, defendant contends that the subpoena should be quashed. This contention is rejected. In obtaining the subpoena, plaintiffs’ attorney certified to the clerk that the notice of deposition was placed in the mail on November 5, 1984, the day the subpoena issued. As plaintiffs state on page 3 of their memorandum, “[t]he fact that the envelope is postmarked November 6, 1984 only shows that the Notice of Deposition was placed in a mailbox after the last pick up for [that] mailbox.” See Notes of Advisory Committee on 1980 Amendments to Rules (“All that seems required is a simple certification on" }, { "docid": "17654122", "title": "", "text": "cert. denied, 365 U.S. 877, 81 S.Ct. 1027, 6 L.Ed.2d 190 (1961), the Ninth Circuit noted: In our opinion [section 6(g)] is broad enough to authorize the [Federal Trade] Commission to provide by rule for the manner of service of process with respect to those activities and duties concerning which there is no statute expressly applicable. Id. at 810. . At the time the challenged subpoena was served, section 4.4(a)(1) er the FTC’s Rules of Practice and Procedure provided: Service of subpoenas . .. may be effected as follows: (1) By registered or certified mail — A copy of the document shall be addressed to the person, partnership, corporation or unincorporated association to be served at his, her or its residence or principal office or place of business, registered or certified, and mailed. .. 16 C.F.R. § 4.4(a) (1978) Subsequent to the service of the instant subpoena and the district court’s decision, the Commission amended rule 4.4 to provide: § 4.4 Service (a) By the Commission. (1) Service of complaints, initial decisions, final orders, and other processes of the Commission under 15 U.S.C. 45 may be effected as follows: (i) By registered or certified mail. — A copy of the document shall be addressed to the person, partnership, corporation or unincorporated association to be served at his, her or its residence or principal office or place of business, registered or certified, and mailed; or (ii) By delivery to an individual. — A copy thereof may be delivered to the person to be served, or to a member of the partnership to be served, or to the president, secretary, or other executive officer or a director of the corporation or unincorporated association to be served; or (iii) By delivery to an address. — A copy thereof may be left at the principal office or place of business of the person, partnership, corporation or unincorporated association, or it may be left at the residence of tne person or of a member of the partnership or of an executive officer or director of the corporation, or incorporated [sic] association to be served. (2)" }, { "docid": "4903695", "title": "", "text": "a protective order, including suppression, is granted. The motion for disqualification of defense counsel is denied. SO ORDERED. . The Clerk apparently issued the subpoena in response to defense counsel's request for a subpoena commanding attendance at a trial or court hearing, because the Clerk’s office issued a Form AO 89 \"Subpoena” commanding presence \"in the United States District Court.” Defense counsel then entered, in the box provided for describing the relevant court term, the address of his law office. This amounted to a conversion of a trial or hearing subpoena (AO Form 89), governed by Fed.R.Civ.P. 45(e), into a deposition subpoena or deposition subpoena duces tecum (AO Form 90), governed by Fed.R. Civ.P. 45(b), (d). The docket sheet and the file revealed that Mr. failed to file a Notice of Deposition together with proof of service thereof, which is consistent with the Clerk's issuance of a Rule 45(e) subpoena. The requirements for issuance of a deposition subpoena are different. According to Rule 45(d)(1), \"[p]roof of a notice to take a deposition ... constitutes a sufficient authorization for the issuance by the clerk ... of subpoenas for the persons named or described therein.” The rule provides further that “proof of service may be made by filing with the clerk ... a copy of the notice together with a statement of date and manner of service and of the names of the persons served, certified by the person who made service.” As the Advisory Committee Notes to the 1980 Amendment make clear, \"[a]ll that seems required is a simple certification on a copy of the notice to take a deposition that the notice has been served on every other party to the action.” Fed.R.Civ.P. 45(d)(1) (1980 Advisory Committee Notes). On the applicability of these requirements to the issuance of a subpoena duces tecum, see infra. . Jurisdiction of a magistrate over suppression motions in civil cases under 28 U.S.C. § 636(b)(1)(A) is confirmed by that subparagraph’s enumeration of criminal case suppression motions as excluded from subparagraph (b)(1)(A) jurisdiction. The clear inference is that suppression motions in civil cases under Fed.R.Civ.P. 26(c)" }, { "docid": "18127888", "title": "", "text": "and the same hereby is, granted in part and denied in part, and respondent shall pay petitioners the sum of $500.00 for the expenses incurred in complying with said subpoenas. . The Advisory Committee states that the purr poses of the 1991 amendments are: (1) to clarify and enlarge the protections afforded persons who are required to assist the court by giving information or evidence; (2) to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties; (3) to facilitate service of subpoenas for depositions or productions of evidence at places distant from the district in which an action is proceeding; (4) to enable the court to compel a witness found within the state in which the court sits to attend trial; (5) to clarify the organization of the text of the rule. 9 Charles A. Wright, Arthur R. Miller & Frank W. Elliott, Federal Practice and Procedure § 2451 at 130-131 (Supp.1993) (footnotes omitted) . It should be noted that Fed.R.Civ.P. 45(c)(1) talks about enforcing the duty to avoid burdensome subpoenas with sanctions. However, as will be seen later, petitioners' motion does not request sanctions for wrongdoing but merely expenses. As such, the motion would not seem to fall within the purview of Rule 45(c)(1). . Fed.R.Civ.P. 45(c)(2)(B) and 45(c)(3)(A) provide: (c) Protection of Persons Subject to Subpoenas. # * * # # # (2) .... (B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued." }, { "docid": "16939338", "title": "", "text": "any subsequent court decisions in this matter that it deems appropriate to consider. . See, e.g., First Am. Corp., 154 F.3d at 20 (holding that personal service of a subpoena on a general partner established personal jurisdiction over a partnership and allowed a court to compel it to comply with a subpoena); In re Sealed Case, 141 F.3d 337, 341 (D.C.Cir.1998) (recognizing that in Rule 45 discovery transfer motions \"a transferee court ... would often lack personal jurisdiction over the nonparty” and that \"[t]he principle that courts lacking jurisdiction over litigants cannot adjudicate their rights is elementary, and cases have noted the problem this creates for the prospect of transferring nonparty discovery disputes”); In re Application to Enforce Admin. Subpoenas Duces Tecum of the S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir.1996) (requiring that a Bahamian nonparty have minimum contacts with the United States before holding it subject to an administrative agency subpoena); Ariel v. Jones, 693 F.2d 1058, 1061 (11th Cir.1982) (upholding the quashing of a subpoena ”[i]n view of the minimal contacts of the [nonparty] with [the forum]”); Estate of Ungar v. Palestinian Auth., 400 F.Supp.2d 541, 549 (S.D.N.Y.2005) (holding that a party must \"make out a prima facie case for personal jurisdiction” in order to take \"any discovery — even jurisdictional discovery — from a foreign corporation”); Elder-Beerman Stores Corp. v. Federated Dep’t Stores, Inc., 45 F.R.D. 515, 516 (S.D.N.Y.1968) (quashing a document subpoena based on complete lack of contacts with the forum); see also Wright & Miller, 9A Federal Practice and Procedure § 2454, at 398-99 (3d ed. 2008) (“A corporation is amenable to service of a subpoena under Rule 45(b) in any forum in which it has sufficient minimum contacts.”);^ Moore et al., Moore’s Federal Practice § 108.125, at 108-48 (3d ed. 2008) (\"A nonparty witness cannot be compelled to testify at a trial, hearing, or deposition unless the witness is subject to the personal jurisdiction of the court.”); Gary B. Born, International Civil Litigation in United States Courts 865 (3d ed.1996) (\"[A] non-party witness can only be compelled to produce documents if it" }, { "docid": "5282431", "title": "", "text": "for decision. II. Discussion A. Standard of review The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad. See Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir.1998). Rule 26(b) authorizes parties to obtain “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and all information “reasonably calculated to lead to discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). “The scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence.” Lewis, 135 F.3d at 402 (quoting Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 501 (6th Cir. 1970)). Rule 45 provides in pertinent part: [A] person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. Fed.R.Civ.P. 45(c)(2)(B). Rule 45 further provides that “the court by which a subpoena was issued shall quash or modify the subpoena if it ... subjects a person to undue burden.” Fed.R.Civ.P. 45(c)(3)(A)(iv). Whether a subpoena imposes an “undue burden” upon a witness is a case specific inquiry that turns on “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53 (S.D.N.Y.1996) (quoting United States v. Int’l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979)). Courts are required to balance the need for" }, { "docid": "14797721", "title": "", "text": "Miller, Federal Practice and Procedure § 2454 (2010). A minority of courts have broadened the interpretation of Rule 45(b) and held that personal in-hand service is not required. See, e.g., Hall v. Sullivan, 229 F.R.D. 501, 506 (D.Md.2005) (“no reason to require in-hand delivery of subpoenas [duces tecum ]-so long as the service is in a manner that reasonably ensures actual receipt of the subpoena by the witness.”). Courts in this jurisdiction have not followed this path. See, e.g., U.S. v. Philip Moms Inc., 312 F.Supp.2d 27, 36-37 (D.D.C.2004) (stating that “Fed.R.Civ.P. 45(b)(1) requires personal service of deposition subpoenas” and quashing subpoenas left in the party’s mail room); Alexander v. F.B.I., 186 F.R.D. 128, 130 (D.D.C.1998) (stating that it is “well settled that, under FED. R. CIV. P. 45(b), [the non-party’s] deposition subpoena must have been personally served upon him”). It is undisputed that in Maverick plaintiffs counsel forwarded the subpoena as an attachment to an email to Time Warner’s counsel on September 14, 2010. Pl.’s Opp’n To Time Warner Mot. Quash, ECF No. 22, Ex. 1 (email from Nicholas Kurtz to Alexander Maltas dated Sept. 14, 2010, 3:53 PM). In the text of the email, plaintiffs counsel asked Time Warner’s counsel to accept service by email of the plaintiffs subpoena. Id. The following day, Time Warner’s counsel responded via email that he was not authorized to accept such service. Time Warner’s Mot. Quash, Maverick, ECF No. 18, Ex. 5 (Letter from Alexander Maltas to Thomas Dunlap and Nicholas Kurtz dated October 13, 2010). Despite this disavowal of service, a week later, on September 22, 2010, a Time Warner representative named “Tammi” called plaintiffs counsel and told him that she would be working on the subpoena and requested that he email a copy to her. PL’s Opp’n Time Warner’s Mot. Quash, Maverick, ECF No. 22, Nicholas Kurtz Decl., ¶ 4 and Ex. 2 (Kurtz email to ‘[email protected]’ dated Sept. 22, 2010: “Pursuant to my telephone conversation with Tammi, attached is the Excel spreadsheet for the Maverick civil subpoena. I have also attached a PDF of the subpoena for your convenience.”)." }, { "docid": "1714972", "title": "", "text": "to a subpoena. We hold that the District Court committed no error in finding that the OPR properly raised its claims of privilege, as required by Federal Rule of Civil Procedure 45(c)(2)(B), by sending a letter of objection within fourteen days after service of the subpoena. We also hold that the District Court was correct in ruling that the OPR’s subsequent submission of a privilege log, detailing each document withheld and the reason, fully complied with the requirements of Federal Rule of Civil Procedure 45(d)(2). Rule 45(c)(2)(B) provides: Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. Fed.R.Civ.P. 45(c)(2)(B) (emphasis added). Rule 45(d)(2) mandates: [T]he claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. Fed.R.Civ.P. 45(d)(2). “One problem presented by Rule 45(d)(2) is that it fails to provide any guidance as to when the claim of privilege or work product must be asserted by the person subpoenaed.” 9A Chakles A. Wright & Arthur R. Miller, Federal PRACTICE AND PROCEDURE § 2464 (1995). This confusion has led more than one court to conclude that Rule 45(d)(2) permits the assertion of the privilege at the time for compliance with the subpoena regardless of whether an objection or motion to quash has been filed prior to the time of compliance. See Ventre v. Datronic Rental Corp., No. 92 C 3289, 1995 WL 42345, *3-4 (N.D.Ill. Feb.2, 1995) (mem.); Winchester Capital Management Co., Inc. v. Manufacturers Hanover Trust Co., 144 F.R.D. 170, 175-76 (D.Mass. 1992). We think this approach is misguided. In our view, a party objecting to a subpoena on the basis of privilege must" }, { "docid": "14586490", "title": "", "text": "was not in effect; request nos. 4, 6 and 7 seek irrelevant information relating to defendant’s business relationship with Cantar/Polyair Corporation, and the Import Broker Agreement expressly exempts Cantar from its coverage; and request nos. 1-7 seek irrelevant information unrelated to the “Far East Region.” Motion to Quash, Exh. G. DISCUSSION Rule 26(b)(1) permits discovery in civil actions of “any matter, not privileged, that is relevant to the claim or defense of any party....” Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute. Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D.Cal.1998). Toward this end, Rule 26(b) is liberally interpreted to permit wide-ranging discovery of information even though the information may not be admissible at the trial. Jones v. Commander, Kansas Army Ammunitions Plant, 147 F.R.D. 248, 250 (D.Kan.1993). All discovery, and federal litigation generally, is subject to Rule 1, which directs that the rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” Federal Rule of Civil Procedure 45 governs subpoenas duces tecum for the production of documents with or without the taking of a deposition. One of the purposes of Rule 45 is “to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties.... ” Advisory Committee Notes to 1991 Amendment. “The non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34.” Id. Under Rule 45, the nonparty served with the subpoena duces tecum may make objections to the subpoena duces tecum within 14 days after service or before the time for compliance, if less than 14 days. Fed.R.Civ.P. 45(c)(2)(B). On timely motion, the court may quash or modify the subpoena. Rule 45(c)(3)(A). A party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash." }, { "docid": "17497790", "title": "", "text": "address the merits of the request, Attorney Rohn nevertheless issued the March Subpoena with the same procedural defects as the original subpoena. The United States Customs Service has adopted its own regulations concerning when and how internal documents will or will not be released. Presumably these regulations were enacted with the special needs and concerns of this federal agency in mind. The Court is reluctant to intrude on the internal procedures of the Customs Service and will decline to do so at this time. Counsel for plaintiff is strongly encouraged to follow the requirements of 19 C.F.R. § 103.21 et seq. if Anderson continues to desire documents from the Customs Service. 4. Required Notice to Other Parties Davila also objected to the issuance of the two subpoenas to the Customs Service because of Anderson’s failure to serve a copy of these subpoenas on Davila. Anderson disputes this contention, stating that opposing counsel was served with a copy of the subpoenas. Although it is unclear from the parties’ arguments, it seems possible that both Anderson and Davila have misread the requirements of Rule 45. The Rule does not mandate mere notice of the service of any subpoena duces tecum but rather requires prior notice of such commanded production of documents. Fed.R.Civ.P. 45(b)(1). Before serving any subpoena, a party is required to provide notice to all other parties in the litigation to allow them the equal opportunity to review and obtain the materials at the same time as the party who served the subpoena. The Court points out this requirement to make sure that it is followed by all counsel in the future. IV. SANCTIONS Rule 45 requires “a party or an attorney responsible for issuance and service of a subpoena to take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Fed.R.Civ.P. 45(c)(1). The rule also requires the Court to enforce this duty and to impose sanctions when an attorney or party breaches this duty. Id.; see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2463 (1995). As" }, { "docid": "14797720", "title": "", "text": "plaintiff in Wild has come forward requesting that the order to be modified on grounds that this cost arrangement is unfair and the Court declines to make an exception for Time Warner, particularly given the paucity of the reasons proffered for the requested changes. §. Improper Service of the Plaintiff’s Subpoena in Maverick As an alternate basis to quash the plaintiffs subpoena in Maverick, Time Warner asserts that the plaintiff did not serve its subpoena in accordance with Rule 45(b) of the Federal Rules of Civil Procedure. Specifically, Time Warner asserts that the plaintiff faxed and emailed Time Warner the Maverick subpoena, but never delivered the subpoena to a named person. Under Federal Rule of Civil Procedure 45(b), “serving a subpoena requires delivering a copy to the named person.” The “longstanding interpretation of Rule 45 has been that personal service of subpoenas is required. The use of the word “delivering” in subdivision (b)(1) of the rule with reference to the person to be served has been construed literally.” 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2454 (2010). A minority of courts have broadened the interpretation of Rule 45(b) and held that personal in-hand service is not required. See, e.g., Hall v. Sullivan, 229 F.R.D. 501, 506 (D.Md.2005) (“no reason to require in-hand delivery of subpoenas [duces tecum ]-so long as the service is in a manner that reasonably ensures actual receipt of the subpoena by the witness.”). Courts in this jurisdiction have not followed this path. See, e.g., U.S. v. Philip Moms Inc., 312 F.Supp.2d 27, 36-37 (D.D.C.2004) (stating that “Fed.R.Civ.P. 45(b)(1) requires personal service of deposition subpoenas” and quashing subpoenas left in the party’s mail room); Alexander v. F.B.I., 186 F.R.D. 128, 130 (D.D.C.1998) (stating that it is “well settled that, under FED. R. CIV. P. 45(b), [the non-party’s] deposition subpoena must have been personally served upon him”). It is undisputed that in Maverick plaintiffs counsel forwarded the subpoena as an attachment to an email to Time Warner’s counsel on September 14, 2010. Pl.’s Opp’n To Time Warner Mot. Quash, ECF No. 22," }, { "docid": "10569621", "title": "", "text": "a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rale means: handing it to the attorney or to the parly; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Fed.R.Civ.P. 5(b). . Even before the 1991 amendments to Rule 45, which now explicitly requires prior notice, courts had held that prior notice of the issuance of a subpoena duces tecum was required under the Rules. Seewald, 1996 WL 612497, at 3'4 n. 2 (citing Ann L. v. X Corp., 133 F.R.D. 433, 436 (W.D.N.Y.1990); Richardson v. Florida, 137 F.R.D. 401, 404 (M.D.Fla.1991)). . Whether Rosen assigned Hewlett to issue the subpoenas directly or whether this was done by Wood is of no moment since Rosen was the supervisor of both Wood and Hewlett. . Hewlett apparently believed that issuance of subpoenas duces tecum in a federal district court civil action was analogous to the procedure under Rule 2004 proceedings in the bankruptcy court. Tr. at 17-18, 20-22. A Rule 2004 order may be obtained ex parte in some contexts. See Bankr.Rule 2004. . A supervising attorney also has an ethical obligation to establish appropriate procedures to ensure that those duties he or she delegates to subordinates are performed properly. Pa. Rule of Professional Conduct 5.3(a) and (b). See, e.g., Office of Disciplinary Counsel v. Ball, 67 Ohio St.3d 401, 618" }, { "docid": "23589631", "title": "", "text": "certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery maybe had only on specified terms and conditions. Fed.R.Civ.P. 26(c). Rule 45 provides a corresponding level of protection for persons subject to subpoena. 9A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2449, at p. 75 (1995). Rule 45(c), entitled “Protection for Persons Subject to Subpoenas,” in relevant part states: (c)(2)(B) ... a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection and copying of any or all of the designated materials or the premises. (c)(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (iv) subjects a person to undue burden. Fed.R.Civ.P. 45(c)(2)(B), (c)(3)(A)(iv). The failure to serve written objections to a subpoena within the time specified by Rule 45(c)(2)(B) typically constitutes a waiver of such objections. United States v. International Bus. Mach. Corp., 70 F.R.D. 700, 701-02 (S.D.N.Y.1976); see Krewson v. City of Quincy, 120 F.R.D. 6, 7 (D.Mass. 1988) (citing cases from various district courts). “In unusual circumstances and for good cause, however, the failure to act timely will not bar consideration of objections.” Semtek Int’l, Inc. v. Merkuriy Ltd., No. 3607 DRH, 1996 WL 238538, at *2 (N.D.N.Y. May 1, 1996); see IBM, 70 F.R.D. at 702 & n. 9; Angell v. Shawmut Bank Conn. Nat’l Assoc., 153 F.R.D. 585, 590 (M.D.N.C.1994); In re Goodyear Tire & Rubber Co. Sec. Litig., 1991 WL 172930, at" }, { "docid": "1220593", "title": "", "text": "a case, it would serve only to torture the rules and to drive up the expense of litigation to construe Rule 45 as forbidding service by certified mail. The court’s conclusion is bolstered by the Federal Rule’s description of personal ser vice in the summons and complaint context as “delivering a copy of the summons and of the complaint to the individual personally.” Fed.R.Civ.P. 4(e)(1). If “delivering ... to such person,” as stated in Rule 45(b)(1), required personal, in-hand service, then “personally” in Rule 4(e)(1) would be pure sur-plusage. The better conclusion is that the drafters knew how to indicate a personal service requirement and that they chose not to do so when they created Rule 45. Resolution Trust Corp. v. Gallagher, 10 F.3d 416, 420 (7th Cir.1993) (statutes should be construed to avoid surplusage). The court has not found, and Zygowicz does not direct it to, any authoritative precedent on this question. Zygowicz relies wholly upon a 1958 Alaska case, in which the court stated that a subpoena failed where “it was not personally served and was not issued out of the federal court having jurisdiction over [the deponent’s] person.” Gillam v. A. Shyman, Inc., 22 F.R.D. 475, 479 (D.Alaska 1958) (Emphasis added). Gillam did not explain where it found this personal service requirement. Moreover, the statement is dicta in that the court stated that the issuing court lacked personal jurisdiction regardless of the method of service. See id. This court has found district court opinions from other jurisdictions that do suggest a personal service requirement in situations involving compulsory process. See, e.g., Khachikian v. BASF Corp., 1994 WL 86702 at *1, 1994 U.S.Dist. LEXIS 2881 at *2 (N.D.N.Y. March 4, 1994); Benford v. American Broadcasting Co., Inc., 98 F.R.D. 40, 41 n. 5 (D.Md.1983); In re: Johnson & Johnson, 59 F.R.D. 174, 177 (D.Del.1973); see also Conanicut Investment Co. v. Coopers & Lybrand, 126 F.R.D. 461, 462 (S.D.N.Y.1992) (holding with the others, but offering that Rule 45 might be “re-evaluated with a view to permitting service of a subpoena other than by personal delivery”). Not one of these" }, { "docid": "3169236", "title": "", "text": "either harmless or substantially justified, the court may sanction a party by excluding its evidence. See id. at 1008-09. FIRE asserts it was substantially justified in not filing the report because the City’s initial disclosures were insufficient. However, FIRE did not raise this issue until four months after the disclosures were due and two months after the expert report deadline. Additionally, FIRE provided no explanation for its delay in raising this issue. Thus, even if we accepted this after-the-fact justification, it came far too late for us to say the district court abused its discretion by striking FIRE’s expert. 2. Quashing the Subpoenas Duces Tecum FIRE next asserts the district court erred in quashing subpoenas to two non-parties. On April 19, 1999, the last day of discovery, FIRE served a subpoena duces tecum upon Burroughs and Rock-hill for its entire file on the St. Louis battalion chiefs exam. The district court quashed the subpoena because it found the method of service did not comport with Rule 45(b)(1). We agree. Rule 45(b)(1) requires FIRE to serve the City with prior notice of commanded production of documents. It failed to serve the City with such notice. Therefore, we find the district court’s decision to quash the subpoena was proper. On April 19, 1999, FIRE also served a subpoena upon Barrett for its exam project file. The subpoena was sent by facsimile (fax) and also by regular mail on the last day of discovery. The district court granted Barrett’s motion to quash because FIRE’s service failed to comport with Rule 45. Rule 45(b)(1) requires that service be made by “delivering a copy” of the subpoena to the person. FIRE contends that its service by fax and regular mail meets the requirements of Rule 45(b)(1). We disagree. When a non-party is served, the method of service needs to be one that will ensure the subpoena is placed in the actual possession or control of the person to be served. See Doe v. Hersemann, 155 F.R.D. 630, 630 (N.D.Ind.1994) (allowing service by certified mail). Although this interpretation of Rule 45(b)(1) may allow service by other" }, { "docid": "16939339", "title": "", "text": "of the [nonparty] with [the forum]”); Estate of Ungar v. Palestinian Auth., 400 F.Supp.2d 541, 549 (S.D.N.Y.2005) (holding that a party must \"make out a prima facie case for personal jurisdiction” in order to take \"any discovery — even jurisdictional discovery — from a foreign corporation”); Elder-Beerman Stores Corp. v. Federated Dep’t Stores, Inc., 45 F.R.D. 515, 516 (S.D.N.Y.1968) (quashing a document subpoena based on complete lack of contacts with the forum); see also Wright & Miller, 9A Federal Practice and Procedure § 2454, at 398-99 (3d ed. 2008) (“A corporation is amenable to service of a subpoena under Rule 45(b) in any forum in which it has sufficient minimum contacts.”);^ Moore et al., Moore’s Federal Practice § 108.125, at 108-48 (3d ed. 2008) (\"A nonparty witness cannot be compelled to testify at a trial, hearing, or deposition unless the witness is subject to the personal jurisdiction of the court.”); Gary B. Born, International Civil Litigation in United States Courts 865 (3d ed.1996) (\"[A] non-party witness can only be compelled to produce documents if it is subject to the court's personal jurisdiction.\"). . Federal Rule of Civil Procedure 45(b)(2), as amended, permits service of a subpoena \"any place within the United States.” Several of our sister circuits have endorsed the position that, when a civil case arises under federal law and a federal statute authorizes nationwide service of process, the relevant contacts for determining personal jurisdiction are contacts with the United States as a whole. See, e.g., In re Oil Spill by Amoco Cadiz Off Coast of Fr. on Mar. 16, 1978, 954 F.2d 1279, 1294 (7th Cir.1992); Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 293-97 (3d Cir.1985). This Court has not yet decided that issue. See Chew, 143 F.3d at 27 n. 3. We note that the district court might also appropriately consider whether nationwide contacts are relevant in evaluating its specific jurisdiction to enforce the Asset Freeze Injunction as against the Bank. . As we have vacated the district court's August 23 order compelling compliance with the subpoena — the order that the district court determined" }, { "docid": "3169237", "title": "", "text": "the City with prior notice of commanded production of documents. It failed to serve the City with such notice. Therefore, we find the district court’s decision to quash the subpoena was proper. On April 19, 1999, FIRE also served a subpoena upon Barrett for its exam project file. The subpoena was sent by facsimile (fax) and also by regular mail on the last day of discovery. The district court granted Barrett’s motion to quash because FIRE’s service failed to comport with Rule 45. Rule 45(b)(1) requires that service be made by “delivering a copy” of the subpoena to the person. FIRE contends that its service by fax and regular mail meets the requirements of Rule 45(b)(1). We disagree. When a non-party is served, the method of service needs to be one that will ensure the subpoena is placed in the actual possession or control of the person to be served. See Doe v. Hersemann, 155 F.R.D. 630, 630 (N.D.Ind.1994) (allowing service by certified mail). Although this interpretation of Rule 45(b)(1) may allow service by other than personal delivery, it is not broad enough to include either fax or regular mail because the court cannot be assured that delivery has occurred. Therefore, the district court properly quashed the subpoena. 3. Motion to Compel FIRE contends the district court improperly denied its motion to compel: (1) non-party witness Douglas Cribbs to attend a deposition; (2) non-party witness Steven Kotraba to answer questions certified at his deposition; and (3) the City to produce the entire personnel files of the eleven individuals who were promoted to battalion chief as a result of the 1997 exam. The district court denied the motion to compel as untimely. The case management order set a deadline of eleven days after the close of discovery for all motions to compel. Discovery closed on April 19, 1999. FIRE filed its motion on May 3, 1999—three days after the deadline. FIRE provided no reason to justify missing the deadline. Therefore, the district court did not abuse its discretion in denying the motion. B. Summary Judgment We review a decision to grant" }, { "docid": "17497791", "title": "", "text": "Davila have misread the requirements of Rule 45. The Rule does not mandate mere notice of the service of any subpoena duces tecum but rather requires prior notice of such commanded production of documents. Fed.R.Civ.P. 45(b)(1). Before serving any subpoena, a party is required to provide notice to all other parties in the litigation to allow them the equal opportunity to review and obtain the materials at the same time as the party who served the subpoena. The Court points out this requirement to make sure that it is followed by all counsel in the future. IV. SANCTIONS Rule 45 requires “a party or an attorney responsible for issuance and service of a subpoena to take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Fed.R.Civ.P. 45(c)(1). The rule also requires the Court to enforce this duty and to impose sanctions when an attorney or party breaches this duty. Id.; see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2463 (1995). As noted in previous discussion, both the January and March subpoenas issued by Attorney Rohn on behalf of Anderson contain numerous defects, including failure to include the text of Rule 45(c) & (d), failure to properly serve the subpoenas, and demand to produce the documents to a location beyond the 100-mile limit allowed under the federal rules. Although these defects may seem merely procedural in nature, they are the safeguards mandated by Rule 45 that are intended to prevent the abuse of the subpoena process. The cost for the broadened powers granted to attorneys by the 1991 Amendments was the increased procedural requirements designed to protect those receiving the subpoenas, especially those who are not parties to the litigation. Moreover, aside from the failure to comply with Rule 45, Attorney Rohn has made no effort to follow the requirements of 19 C.F.R. § 103.21. Even after she was advised directly by the Customs Service how to go about seeking to obtain documents from the Customs Service, counsel blithely issued another subpoena containing the same defects as" }, { "docid": "10569620", "title": "", "text": "the attention of the Court certain asserted violations of the Federal Rules of Civil Procedure and the Pennsylvania Rules of Professional Conduct, did not violate Rule 11. III. CONCLUSION The issuance of a subpoena duces tecum to non-parties without prior notice to parties violates Rule 45 of the Federal Rules of Civil Procedure. Rosen is directly, and under principles of agency, liable for the violation of the Rule by a paralegal under his supervision. By issuing the subpoenas duces tecum to non-parties without prior notice to parties, Rosen caused harm to Steinman and to the public. In light of these circumstances, the Court will impose sanctions on Rosen. Secondly, the communications between Wood and Lawrence did not violate Rules 4.2, 1.6, or 1.9 of the Pennsylvania Rules of Professional Conduct because Wood was not seeking information which was protected by the attorney-client privilege, and, in any event, Lawrence did not disclose any privileged or confidential information to Wood. . Rule 5(b) provides: Whenever under these rales service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rale means: handing it to the attorney or to the parly; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Fed.R.Civ.P. 5(b). . Even before the 1991 amendments to Rule 45, which now explicitly requires prior" }, { "docid": "14797719", "title": "", "text": "other IP addresses that do not provide the name and other information requested of a unique individual or for the ISP’s internal costs incurred to notify the ISP’s customers; and it is ORDERED that any ISP that receives a subpoena and elects to charge for the costs of production shall provide a billing summary and any cost reports that serve as a basis for such billing summary and any costs claimed by such ISP Id. at 3-4 (emphasis supplied). Time Warner now requests that the Court alter that arrangement so that Time Warner is paid in advance of providing the requested information to the plaintiff, and is paid “on a per-IP-address basis, rather than per subscriber.” Time Warner Mem. Supp. Mot. Quash, Wild, at 11-12. Time Warner has proffered no complaints about plaintiffs’ inability or refusal to pay for subpoena compliance that would justify alteration of the order to a prepayment plan. Nor does Time Warner contend that it is under such a financial hardship that prepayment is required. No other ISP subpoenaed by the plaintiff in Wild has come forward requesting that the order to be modified on grounds that this cost arrangement is unfair and the Court declines to make an exception for Time Warner, particularly given the paucity of the reasons proffered for the requested changes. §. Improper Service of the Plaintiff’s Subpoena in Maverick As an alternate basis to quash the plaintiffs subpoena in Maverick, Time Warner asserts that the plaintiff did not serve its subpoena in accordance with Rule 45(b) of the Federal Rules of Civil Procedure. Specifically, Time Warner asserts that the plaintiff faxed and emailed Time Warner the Maverick subpoena, but never delivered the subpoena to a named person. Under Federal Rule of Civil Procedure 45(b), “serving a subpoena requires delivering a copy to the named person.” The “longstanding interpretation of Rule 45 has been that personal service of subpoenas is required. The use of the word “delivering” in subdivision (b)(1) of the rule with reference to the person to be served has been construed literally.” 9A Charles Alan Wright & Arthur R." } ]

[ { "docid": "3116444", "title": "", "text": "intended to appeal his summary judgment. Rumgay had notice, briefed the issues, knew what was appealable, and was not misled. We have appellate jurisdiction as to all parties. III. Government officials performing discretionary functions generally are shielded from liability for civil damages 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, 2738, 73 L.Ed.2d 396 (1982). On summary judgment, we may consider not only the currently applicable law, but also the law as it clearly existed at the time an action occurred. 102 S.Ct. at 2738. If the law at that time was not clearly established, an official could not reasonably be expected to “know” that the law forbade conduct not previously identified as unlawful. Id. Conversely, if the law was clearly established, the immunity defense fails because a reasonable public official should have known the law governing his conduct. Id. “Clearly established rights” are those with contours sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). A plaintiff need not show that the very action in question has previously been held unlawful, but she needs to show that in light of preexisting law the unlawfulness was apparent. 107 S.Ct. at 3039. Thus an official who conducts an illegal search may not be held personally liable if he could have reasonably believed that the search comported with the Fourth Amendment. Id. at 3042. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Shea contends there are genuine issues, (1) whether Wazelle “resided” in Shea’s home, and (2) whether the defendants’ conduct was “reasonable.” She also contends that Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), does not apply here because that case involved the construction of a state statute. In Griffin, upon information received from a police detective that there were or might be guns in the" } ]

[ { "docid": "18231016", "title": "", "text": "exists if the totality of the circumstances known to the officer at the time of the arrest would warrant a reasonable person in believing that the arrestee had committed, was committing, or was about to commit a crime. Abbott v. Sangamon County, Ill., 705 F.3d 706, 714 (7th Cir.2013); see also Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). It is a practical, commonsense standard that requires only the type of fair probability on which reasonable people act. See Florida v. Harris, — U.S. —, 133 S.Ct. 1050, 1055-56, 185 L.Ed.2d 61 (2013); Hanson v. Dane County, Wis., 608 F.3d 335, 338 (7th Cir.2010). Based as it is on probabilities rather than hard certainties, the probable-cause standard inherently allows room for reasonable mistakes. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Qualified immunity affords an even greater level of protection by shielding officers from “suit for damages if ‘a reasonable officer could have believed [the arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.’” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam) (second alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); see also, e.g., Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982))). In this context, qualified immunity provides shelter for officers who have “arguable probable cause” to arrest — i.e., those officers that reasonably but mistakenly believe they have probable cause. See Abbott, 705 F.3d at 714-15, 723-24; Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir.1998). Though they may appear to be the same, the probable-cause and arguable-probable-cause inquiries are different. Fleming v. Livingston" }, { "docid": "3904057", "title": "", "text": "(1999). Under the doctrine of qualified immunity, “[government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. ” Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir.1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)); In re City of Philadelphia Litig., 49 F.3d 945, 961 (3d Cir.1995). The inquiry when a defendant claims qualified immunity is “whether a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer’s possession.” Sharrur, 128 F.3d at 826. Officers who “reasonably but mistakenly” conclude that their conduct is lawful are thus entitled to immunity. Id. A court, however, need not consider whether the right implicated was clearly established at the time of the events in question if the plaintiff has not alleged a deprivation of a constitutional right. See Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998); Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Larsen v. Senate of Pa., 154 F.3d 82, 86 (3d Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1037, 143 L.Ed.2d 45 (1999). III. DISCUSSION A. Handcuffing of Torres The first question before us is whether the agents acted lawfully in their treat ment of Torres during the execution of the search. If they did, then they were entitled to qualified immunity because the appellees would not have “alleged a deprivation of a constitutional right at all.” Lewis, 523 U.S. at 841 n. 5, 118 S.Ct. at 1714 n. 5. The Supreme Court has held that officers executing a search warrant lawfully may restrain persons present at the searched premises. See Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981) (“[A] warrant to search for contraband" }, { "docid": "1607033", "title": "", "text": "definition depend on a preexisting violation of § 1985.” Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir.1994). The allegations in Plaintiffs complaint which, as the Court has noted, fail to set forth a cause of action under 1985, therefore, necessarily also fail to state a valid claim under Section 1986. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir.1988) (“A claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985.”). Accordingly, the Court will grant Defendants’ motion to dismiss Plaintiffs federal civil rights claims under 42 U.S.C. §§ 1985 (Count V) and 1986 (Count III). C. QUALIFIED IMMUNITY FROM LIABILITY UNDER 42 U.S.C. § 1983 Defendants also move to dismiss Plaintiffs Section 1983 claims for unlawful arrest (Count V), false imprisonment (Count II), and malicious prosecution (Count X) on the grounds of qualified immunity. Defendants, as law enforcement officers employed by the State of New Jersey, presumptively enjoy qualified immunity for actions, such as arrests, which are taken within the scope of their discretionary authority. See Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The doctrine of qualified immunity shields government officials “from suits seeking damages under § 1983 ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Donahue v. Gavin, 280 F.3d 371, 377 (3d Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[I]n § 1983 cases involving alleged violations of the Fourth Amendment, ... the inquiry is whether a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer’s possession” at the time of the alleged violation. Sharrar v. Felsing, 128 F.3d 810, 827 (3d Cir.1997) (citing Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)). Thus, police officers who, at the time of an alleged Fourth Amendment violation, had probable cause for their actions or" }, { "docid": "11016078", "title": "", "text": "on both scores and entered judgment in their favor. II. ANALYSIS Standard of Review We review a district court’s grant of summary judgment and its determination that the defendants are entitled to qualified immunity de novo. Forman v. Richmond Police Department, 104 F.3d 950, 955-57 (7th Cir.1997); Booker v. Ward, 94 F.3d 1052, 1057 (7th Cir.1996), certiorari denied, — U.S. -, 117 S.Ct. 952, 136 L.Ed.2d 840 (1997); Edwards v. Cabrera, 58 F.3d 290, 293 (7th Cir.1995); Burns v. Reed, 44 F.3d 524, 529 (7th Cir.1995), cert. denied, — U.S. -, 115 S.Ct. 2583, 132 L.Ed.2d 832 (1995); Maltby v. Winston, 36 F.3d 548, 555 & n. 7 (7th Cir.1994), certiorari denied, — U.S. -, 115 S.Ct. 2576, 132 L.Ed.2d 827 (1995). Qualified Immunity The doctrine of qualified immunity shields public officials performing discretionary functions from liability for civil damages where their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The doctrine serves the purpose of protecting public officials “ ‘from undue interference with their duties and from potentially disabling threats of liability.’ ” Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 1022, 127 L.Ed.2d 344 (1994)(quoting Harlow, at 806, 102 S.Ct. at 2731-32). In the specific context of a damages action brought under 42 U.S.C. § 1983 stemming from a warrantless arrest, the arresting officers will be immune from liability “if ‘a reasonable officer could have believed [the plaintiffs arrest] to be lawful, in light of clearly established law and the information the arresting officers possessed.’ ” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987)). A warrantless arrest is lawful under the Fourth Amendment if supported by probable cause. Beck v. Ohio, 379 U.S. 89, 90, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Thus, the officers are entitled to immunity if a reasonable officer could have believed that" }, { "docid": "22288384", "title": "", "text": "can be held liable for Berg’s unconstitutional arrest. A. Constable Wolfgang Constable Wolfgang contends that he is entitled to qualified immunity from suit because he executed a facially valid warrant. Unless historical facts are in dispute, qualified immunity is a matter for the court. See Infra at 828, 102 S.Ct. 2727. The inquiry is an objective one; the arresting officer’s subjective beliefs about the existence of probable cause are not relevant. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In considering claims of qualified immunity, courts are sensitive to “[t]he broad range of reasonable professional judgment accorded” law enforcement officials in the § 1983 context. Greene v. Reeves, 80 F.3d 1101, 1107 (6th Cir.1996). Thus, “the qualified immunity doctrine ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Orsatti 71 F.3d at 484 (quoting Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). A government official is entitled to qualified immunity if his “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). In the context of this case, the question is whether “a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer’s possession.” Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir.1997) (citing Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)) (per curiam); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Our inquiry, then, has two parts. Did Wolfgang’s conduct violate clearly established law? If so, did he nevertheless reasonably believe that his conduct was lawful in light of the information he possessed at the time? At the time of Berg’s arrest in 1994, it was clear that an arrest could be made only with probable cause. Although Rogers was decided in 1997, Whiteley clearly" }, { "docid": "22834768", "title": "", "text": "of Appellees on the arrest issue. We do not reach the question whether the officers had probable cause to arrest because we hold that they were entitled to qualified immunity with respect to that issue. Government officials performing discretionary functions are entitled to qual ified immunity from damages if their conduct does not violate “ ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir.1988), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The doctrine of qualified immunity does not require that probable cause to arrest exist. Even absent probable cause, qualified immunity is available if a reasonable police officer could have believed that his or her conduct was lawful, in light of clearly established law and the information the searching officers possessed. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Thus, even if the officers were mistaken that probable cause to arrest the Fullers existed, they are nonetheless immune from liability if their mistake was reasonable. Anderson, 483 U.S. at 641, 107 S.Ct. at 3039. The critical inquiry before us, therefore, is whether a reasonable . police officer could have believed that his' or her conduct was lawful, in light of clearly established law and the information he or she possessed at the time. Id. The purpose of qualified immunity is to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). We have previously held that on a motion for summary judgment, where the evidence is undisputed, a district court may establish that a defendant is entitled to qualified immunity as a matter of law. See Thorsted v. Kelly, 858 F.2d 571, 575 (9th Cir.1988). However, “when there are triable issues of fact of a reasonable belief that a search is lawful, viewed in light of the settled nature of the law, these issues are for the jury.”" }, { "docid": "17136069", "title": "", "text": "entitled to qualified immunity for his actions in the investigation of the alleged illegal activities at the Bingo Center, and the subsequent arrest of those allegedly involved in these activities. Qualified immunity is generally a question of law for the court to resolve, Rakovich v. Wade, 850 F.2d 1180, 1201-02 (7th Cir.1988), “at the earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). As such, summary judgment provides a proper posture from which to decide this objective legal question, which we review de novo. Rakovich, 850 F.2d at 1204-05. Government officials may raise qualified immunity as an affirmative defense to actions brought against them under 42 U.S.C. § 1983. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1924, 64 L.Ed.2d 572 (1980). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. Harlow thus announced an objective standard for determining whether a government officer is entitled to qualified immunity. Id. at 816-19, 102 S.Ct. at 2737-39. In that regard, a “law enforcement officer who participates in a search that violates the Fourth Amendment may [not] be held personally liable for money damages if a reasonable officer could have believed that the search comported with the Fourth Amendment.” Anderson v. Creighton, 483 U.S. 635, 636-37, 107 S.Ct. 3034, 3037, 97 L.Ed.2d 523 (1987). In this circuit, we have outlined a two-step approach for analyzing a defendant’s qualified immunity defense: “(1) Does the alleged conduct set out a constitutional violation? and (2) Were the constitutional standards clearly established at the time in question?” Kernats v. O’Sullivan, 35 F.3d 1171, 1176 (7th Cir.1994) (citing Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789, 1792-93, 114 L.Ed.2d 277 (1991)); see also Siegert, 500 U.S. at 232, 111 S.Ct. at 1793" }, { "docid": "3680761", "title": "", "text": "under either 18 U.S.C. § 111 or 18 U.S.C. § 1501. II. A. We review de novo an order granting summary judgment, using the same test as that used by the district court. Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996). When reviewing a summary judgment decision, we must confine our review of the evidence to that submitted to the district court. Landefeld v. Marion Gen. Hosp., 994 F.2d 1178, 1181 (6th Cir.1993). Summary judgment is proper “if the pleadings, depositions, and 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); Terry Barr Sales Agency, Inc., 96 F.3d at 178. B. The plaintiff claims that the defendant is not entitled to qualified immunity because he arrested her without probable cause in violation of the Fourth Amendment. We disagree. “Government officials performing discretionary functions are afforded qualified immunity, shielding them from civil damages, as long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”’ Poe v. Haydon, 853 F.2d 418, 423 (6th Cir.1988) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Therefore, Officer King was entitled to qualified immunity if “ ‘a reasonable officer could have believed [Avery’s arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.’ ” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987)). In other words, the defendant is entitled to qualified immunity if a “reasonable officer could have believed that probable cause existed to arrest [Avery].” Hunter, 502 U.S. at 228, 112 S.Ct. at 537. Probable cause to make an arrest exists if the facts and circumstances within the arresting officer’s knowledge were “sufficient to warrant a prudent" }, { "docid": "1607034", "title": "", "text": "their discretionary authority. See Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The doctrine of qualified immunity shields government officials “from suits seeking damages under § 1983 ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Donahue v. Gavin, 280 F.3d 371, 377 (3d Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[I]n § 1983 cases involving alleged violations of the Fourth Amendment, ... the inquiry is whether a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer’s possession” at the time of the alleged violation. Sharrar v. Felsing, 128 F.3d 810, 827 (3d Cir.1997) (citing Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)). Thus, police officers who, at the time of an alleged Fourth Amendment violation, had probable cause for their actions or “who reasonably but mistakenly concluded] that their conduct comport[ed] with the requirements of the Fourth Amendment are entitled to immunity.” Sharrar, 128 F.3d at 826 (quoting Hunter, 502 U.S. at 227, 112 S.Ct. 534) (additional citations omitted). “In this way, the qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Sharrar, 128 F.3d at 826 (quoting Hunter, 502 U.S. at 229, 112 S.Ct. 534) (additional citations omitted). In determining whether a police officer is entitled to qualified immunity, both the existence of a clearly established right and the objective reasonableness of the officer’s actions are questions of law for the Court to decide, see Luthe v. City of Cape May, 49 F.Supp.2d 380, 389 (D.N.J.1999) (Orlofsky, J.) (citing Sharrar, 128 F.3d at 828), but any disputed issues of historical fact relevant to the court’s determination must be submitted to a jury. See Curley v. Klem, 298 F.3d 271, 278 (3d Cir.2002); see also, Sharrar, 128 F.3d at 828. Because the qualified" }, { "docid": "18158000", "title": "", "text": "relevant facts underlying the criminal charges against Plaintiff. (Def. Rauch’s Mot. to Dismiss Ex. A). Rather, Plaintiff claims that Rauch knew or should have known that there “was no evidence to support the elements of 'every charge brought, and to such degree that at the preliminary hearing charges were dismissed, on a writ of habeas corpus further charges were dismissed, and no conviction resulted from any charges.” (Pl.’s Compl. ¶ 30b). ■ Plaintiffs allegations are sufficient to support a claim to be free from-arrest, detention, and prosecution under the Fourth Amendment. i. Qualified Immunity Having concluded that Plaintiff has stated a Fourth Amendment claim, the Court must determine if Defendant Rauch is entitled to qualified immunity, as he asserts. (Def. Rauch’s Mot. to Dismiss 6-8). Government officials performing discretionary functions are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir.1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In § 1983 cases alleging a violation of the Fourth Amendment, the question of immunity focuses on whether a reasonable officer could have believed that his conduct was lawful in light of clearly established law and the information in the officer’s possession. Id. As the Third Circuit explained in Sharrar: “Law enforcement officials who ‘reasonably but mistakenly’ conclude that their conduct comports with the requirements of the Fourth Amendment are entitled to immunity. In this way, the ‘qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.’ ” 128 F.3d at 826 (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (additional citations omitted)). Drawing all reasonable inferences in Plaintiffs favor, the Court concludes that the facts as alleged in the Complaint are sufficient to support a finding that no reasonable police officer could have believed that probable cause existed to support the charges against Douris. Therefore, Defendant Rauch’s" }, { "docid": "23459419", "title": "", "text": "jurisprudence would require a heightened pleading in cases involving individual government officials.” Id. Given this express reservation of the issue, we decline to read into Leather-man any change in the law respecting actions against individual municipal defendants and conclude that we are still bound by Elliott and its progeny in determining whether Babb stated a claim against Dorman. “Qualified” or “good faith” immunity shields government officials performing discretionary functions from liability “unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir.1986) (quoting Harlow v. Fitzgerald 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982)); see also Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir.1990); Saldana v. Garza, 684 F.2d 1159, 1162-65 (5th Cir.1982), cert. denied 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983). The protection afforded by the defense is an “immunity from suit, not simply immunity from liability.” Geter v. Fortenberry, 849 F.2d 1550, 1552 (5th Cir.1988). Consequently, we have long held that “questions regarding qualified immunity are resolved on the face of the pleadings and with limited resort to pre-trial discovery.” James v. Sadler, 909 F.2d 834, 838 (5th Cir.1990); see also Hunter v. Bryant, 502 U.S. 224,-, 112 S.Ct. 534, 536, 116 L.Ed.2d 589, 595 (1991) (stressing the importance of resolving the immunity issue at the earliest possible stage of the litigation since it entails an entitlement to immunity from suit and not merely a defense to liability). In suits alleging'illegal arrest, the qualified immunity determination turns on whether “‘a reasonable officer could have believed [the arrest] to be lawful, in light of clearly established law and the information the ... officer[ ] possessed.’ Even law enforcement officials who ‘reasonably but mistakenly conclude that probable cause is present’ are entitled to immunity.” Hunter, 502 U.S. at-, 112 S.Ct. at 536, 116 L.Ed.2d at 595 (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523, 531-32 (1987)); see also Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir.1989)" }, { "docid": "18231017", "title": "", "text": "clearly established law and the information the [arresting] officers possessed.’” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam) (second alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); see also, e.g., Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982))). In this context, qualified immunity provides shelter for officers who have “arguable probable cause” to arrest — i.e., those officers that reasonably but mistakenly believe they have probable cause. See Abbott, 705 F.3d at 714-15, 723-24; Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir.1998). Though they may appear to be the same, the probable-cause and arguable-probable-cause inquiries are different. Fleming v. Livingston County, Ill., 674 F.3d 874, 880 (7th Cir.2012). An arrest without probable cause is a violation of a constitutional right, whereas an arrest without arguable probable cause is a violation of a “clearly established” constitutional right. See Hunter, 502 U.S. at 227, 112 S.Ct. 534; McComas v. Brickley, 673 F.3d 722, 725 (7th Cir.2012). Officer Kermon contends that the district court erred in denying summary judgment on his defense of qualified immunity with regard to Gutierrez’s false-arrest claim. He concedes that many factual disputes exist, but he argues that there are six “undisputed” facts that entitle him to qualified immunity notwithstanding the chaotic state of the record. Those six facts are (1) Gutierrez’s unsteady gait; (2) his dirty, disheveled appearance; (3) his possession of a golf club; (4) his apparent agitation; (5) his lack of cooperation; and (6) his red, watery eyes. Officer Kermon maintains that, on the basis of these six facts, a reasonable person in his position reasonably, even if mistakenly, could have believed that there was probable cause to arrest Gutierrez for" }, { "docid": "22196970", "title": "", "text": "1983 cases involving alleged violations of the Fourth Amendment, the Supreme Court has emphasized that the inquiry is whether a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer’s possession. See Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (per curiam); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). Our cases have followed that lead. See Kornegay v. Cottingham, 120 F.3d 392, 395-96 (3d Cir.1997); Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir.1996); Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir.1995). Thus, law enforcement officials who “reasonably but mistakenly” conclude that their conduct comports with the requirements of the Fourth Amendment are entitled to immunity. Hunter, 502 U.S. at 227, 112 S.Ct. at 536. See also Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40; Kornegay, 120 F.3d at 395-96; Orsatti 71 F.3d at 483. In this way, “the qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter, 502 U.S. at 229, 112 S.Ct. at 537 (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092, 1096, 1097, 89 L.Ed.2d 271 (1986)); Orsatti 71 F.3d at 484. It follows that the officer’s subjective beliefs about the ltegality of his or her conduct generally “are irrelevant.” Anderson, 483 U.S. at 641, 107 S.Ct. at 3040. See also Grant v. City of Pittsburgh, 98 F.3d 116, 123-24 (3d Cir.1996). The first issue, whether the plaintiff alleges the violation of a clearly established constitutional right, is; purely a question of law, and the Supreme Court has made clear that this is a threshold question that should be decided expeditiously to spare a defendant the “unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). The language in our eases is much less clear" }, { "docid": "3904056", "title": "", "text": "district court denied them summary judgment on the basis of qualified immunity. In particular, the question they present is whether the district court should have granted qualified immunity to them with respect to the following aspects of their conduct in executing the search warrant: (1) leaving Torres handcuffed for the duration of the search; (2) searching the entire premises rather than just the basement; and (3) causing excessive damage to the walls, ceilings, and other items in the home. II. JURISDICTION and STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346 and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291 pursuant to the collateral order doctrine, as applied to qualified immunity cases. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We exercise plenary review over the district court’s denial of summary judgment on qualified immunity grounds. See Abbott v. Latshaw, 164 F.3d 141, 145 (3d Cir.1998), cert. denied, — U.S. — , 119 S.Ct. 2393, 144 L.Ed.2d 794 (1999). Under the doctrine of qualified immunity, “[government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. ” Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir.1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)); In re City of Philadelphia Litig., 49 F.3d 945, 961 (3d Cir.1995). The inquiry when a defendant claims qualified immunity is “whether a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer’s possession.” Sharrur, 128 F.3d at 826. Officers who “reasonably but mistakenly” conclude that their conduct is lawful are thus entitled to immunity. Id. A court, however, need not consider whether the right implicated was clearly established at the time of the events in question if the plaintiff has not alleged a deprivation of a constitutional right. See Wilson v. Layne, 526" }, { "docid": "9995632", "title": "", "text": "will therefore reverse the district court’s sua sponte dismissal of Abbott’s § 1983 claim against Lat-shaw. B. Qualified Immunity Qualified immunity shields public officials performing discretionary functions from § 1983 and Fourteenth Amendment liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Our qualified immunity inquiry thus proceeds in two steps. See Sharrar v. Felsing, 128 F.3d 810, 828 (3d Cir.1997). First, we must determine whether the defendants violated “clearly established” rights. Second, we must decide whether, in light of the concrete, clearly established, and particular law applicable on April 25, 1996, and the information then available, a reasonable officer would have believed that the conduct of Diehl and/or the Greensburg police officers deprived Abbott of his light to procedural due process. See Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Reitz v. County of Bucks, 125 F.3d 139, 147 (3d Cir.1997). It is readily apparent that the • applicable law regarding procedural due process was “clearly established” at the time of the alleged violation of Abbott’s rights. As we noted earlier, the Supreme Court’s 1972 decision in Fuentes held that due process protects possessory interests in property. 407 U.S. at 87, 92 S.Ct. 1983. Thus, the law in this area was clear for at least twenty-four years prior to the incident involving Abbott and the defendants. However, resolution of the second element of the qualified immunity test is more complex. The district court determined that an objectively reasonable officer in the same situation would not have realized that the defendants were violating Abbott’s rights, and ruled that Diehl and the Greensburg police officers were thus immune from § 1983 liability for helping Latshaw. The court held that an officer who had reviewed Latshaw’s documentation would reasonably have concluded that she was entitled to immediate possession of the van. Therefore, it found, Diehl and the Greensburg police offi cers could not have believed they were denying Abbott" }, { "docid": "4950974", "title": "", "text": "which exist in this case. Courts have been admonished to resolve qualified immunity issues at the earliest possible stage of litigation. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1981). Qualified immunity protects government officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). To apply this standard, we determine whether the right allegedly violated was clearly established when the challenged conduct occurred, and then evaluate the legal reasonableness of the defendants’ conduct. Biddle v. Martin, 992 F.2d 673, 675 (7th Cir.1993). When a warrantless arrest is the subject of a § 1983 action, the defendant officer is “entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest” the plaintiff. Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). Probable cause exists when the police have facts and circumstances within their knowledge based upon reasonably trustworthy information that those facts and circumstances are sufficient to allow a prudent person to believe that the suspect has committed or was committing an offense. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 937, 130 L.Ed.2d 882 (1995). Probable cause is a nontechnical concept which seeks to accommodate the interests of effective law enforcement, on the one hand, versus the privacy and liberty interests possessed by citizens who follow the law. The police, in determining whether probable cause exists, must as sess probabilities in specific factual scenarios, and such assessment is not conducive to precise legal rules. Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). “In recognition of the endless scenarios confronting police officers in their daily regimen, courts evaluate probable cause ‘not on the facts as an omniscient observer would perceive them, but on the" }, { "docid": "9502558", "title": "", "text": "v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Nerren v. Livingston Police Dep't, 86 F.3d 469, 472 (5th Cir.1996)). Our review of the district court's order denying summary judgment on qualified immunity grounds is conducted de novo. See Nerren, 86 F.3d at 472 (citing Johnston v. City of Houston, Tex., 14 F.3d 1056, 1059 (5th Cir.1994)). B. Probable Cause and Objective Reasonableness It is, by now, well settled and understood that \"[f]ederal immunity law shields state officials from personal liability under federal law for civil damages as long as their conduct could reasonably have been thought consistent with the rights they are alleged to have violated.\" Cantu, 77 F.3d at 805 (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity protects against novel theories of statutory or Constitutional injury-any purported harm must stem from rights clearly established under law at the time of the incident, and the contours of that right must be sufficiently clear such that a reasonable officer would understand that his actions were violative of the right at issue. See Anderson, 483 U.S. at 638-39, 107 S.Ct. 3034. Thus, the qualified immunity standard \"gives ample room for mistaken judgments\" by protecting \"all but the plainly incompetent or those who knowingly violate the law.\" Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). When an individual asserts a claim for wrongful arrest, qualified immunity will shield the defendant officers from suit if \"`a reasonable officer could have believed [the arrest at issue] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.' Even law enforcement officials who `reasonably but mistakenly conclude that probable cause is present' are entitled to immunity.\" Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Anderson, 483 U.S. at 641, 107 S.Ct. 3034); see also Babb v." }, { "docid": "18158001", "title": "", "text": "102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In § 1983 cases alleging a violation of the Fourth Amendment, the question of immunity focuses on whether a reasonable officer could have believed that his conduct was lawful in light of clearly established law and the information in the officer’s possession. Id. As the Third Circuit explained in Sharrar: “Law enforcement officials who ‘reasonably but mistakenly’ conclude that their conduct comports with the requirements of the Fourth Amendment are entitled to immunity. In this way, the ‘qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.’ ” 128 F.3d at 826 (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (additional citations omitted)). Drawing all reasonable inferences in Plaintiffs favor, the Court concludes that the facts as alleged in the Complaint are sufficient to support a finding that no reasonable police officer could have believed that probable cause existed to support the charges against Douris. Therefore, Defendant Rauch’s Motion to Dismiss Count II in his individual capacity on the basis of qualified immunity will be denied. b. Official Capacity For the reasons discussed in Section IILB.l.b, supra, because Plaintiff has directly sued Bucks County and the DA’s Office under § 1983, his official capacity claim against Defendant Rauch is unnecessary and will be dismissed. C. Count III: Retaliation under the PHRA In Count III of his Complaint, Plaintiff Alleges that Defendants’ conduct constituted unlawful retaliation in violation of the PHRA. To bring suit under the PHRA, Pennsylvania law requires that a plaintiff must exhaust his administrative remedies before maintaining an action under that act. 42 Pa. Cons.Stat. Ann. § 942(c); Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir.1997). Although Plaintiff filed a complaint with the PHRC regarding his belief that Bucks County failed to provide him an accommodation, Pl.’s Compl. ¶ 12, Plaintiff neither alleges nor is there any indication that he filed a retaliation claim with the PHRA. The analysis of whether a plaintiff has exhausted his administrative remedies" }, { "docid": "22196969", "title": "", "text": "that “verbal” warrant to conduct or authorize the search. Inasmuch as Sgt. Felsing did not participate in the search itself, it was not error to grant summary judgment as to him. To summarize, we conclude that the district court erred in holding that there were exigent circumstances as a matter of law to justify the warrantless arrests, that the protective sweep was justified as a matter of law notwithstanding the absence of articulable facts and that there was no basis to hold Lt. Wilson responsible for the subsequent search. III. QUALIFIED IMMUNITY A. Applicable Principles A claim under section 1983 for damages against police officers or other government officials will almost inevitably raise issues as to the availability of qualified immunity. Government officials performing discretionary functions are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In addition, and particularly in § 1983 cases involving alleged violations of the Fourth Amendment, the Supreme Court has emphasized that the inquiry is whether a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer’s possession. See Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (per curiam); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). Our cases have followed that lead. See Kornegay v. Cottingham, 120 F.3d 392, 395-96 (3d Cir.1997); Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir.1996); Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir.1995). Thus, law enforcement officials who “reasonably but mistakenly” conclude that their conduct comports with the requirements of the Fourth Amendment are entitled to immunity. Hunter, 502 U.S. at 227, 112 S.Ct. at 536. See also Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40; Kornegay, 120 F.3d at 395-96; Orsatti 71 F.3d at 483. In this way, “the qualified" }, { "docid": "22288385", "title": "", "text": "if his “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). In the context of this case, the question is whether “a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer’s possession.” Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir.1997) (citing Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)) (per curiam); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Our inquiry, then, has two parts. Did Wolfgang’s conduct violate clearly established law? If so, did he nevertheless reasonably believe that his conduct was lawful in light of the information he possessed at the time? At the time of Berg’s arrest in 1994, it was clear that an arrest could be made only with probable cause. Although Rogers was decided in 1997, Whiteley clearly established in 1971 the conditions under which an arresting officer can obtain probable cause from a warrant. As we have already noted, the warrant at issue in this case did not provide probable cause to arrest Berg. Therefore, we must consider whether a reasonable constable in Wolfgang’s position could have concluded that there was probable cause to arrest Berg based on the information Wolfgang had at the time. Ordinarily, it is reasonable for an officer to assume that a warrant has been issued for probable cause. As the Supreme Court explained in Baker, Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investígate independently every claim of innocence, whether , the claim is based on mistaken identity or a defense such as lack of requisite intent. 443 U.S. at 145-46, 99 S.Ct. 2689. Therefore, we have generally extended immunity to an officer who makes an arrest based on" } ]

[ { "docid": "3464354", "title": "", "text": "and as to each transfer, the registration or transfer occurred prior to the time the occupational tax for the period of July 1, 1988, to June 30,1984, was paid or during a fiscal year when the occupational tax was not paid. 22. Penalties were assessed under 26 U.S.C. § 6651 for each registration and transfer which took place at a time when the occupational tax for the respective fiscal year was not paid. As to the transfers in question, debtor produced evidence which showed that BATF approved each application for tax-exempt transfer prior to the time the transfer was made. Debtor’s Exhibit 2. Tr. p. 14-16. Debtor asserts that the transfers would not have been made if the applications for tax-exempt status had not been approved. The Court accepts debtor’s testimony and finds that debtor had a reasonable belief that each transfer in question was exempt from the transfer tax provision of 26 U.S.C. § 5811 and it was based on this belief that no tax was paid. 23. At trial, claimant conceded that the special occupational tax for fiscal year 1984, and the transfer tax for all transfers in which debtor was the transferee, plus respective penalties and interest, are not due and owing from the debtor. B. Conclusions of Law 1. Claimant timely filed a proper proof of claim and debtor properly served its Amended Objection to Claim on February 12, 1987. A proper proof of claim is presumed valid, and is prima facie evidence of the validity of both the claim and its amount. Whitney v. Dresser, 200 U.S. 532, 26 S.Ct. 316, 50 L.Ed. 584 (1906); In re Mobile Steel Co., 563 F.2d 692 (5th Cir. 1977); In re Colorado Corp., 531 F.2d 463 (10th Cir.1976); In re Munzenrieder Corp., 58 B.R. 228 (Bkrtcy.M.D.Fla.1986); Matter of Ward, 23 B.R. 45 (Bkrtcy.M.D.Fla.1982); In re Palm Investments of Pinellas County, 2 B.R. 646 (Bkrtcy.M.D.Fla.1980); 11 U.S.C. §§ 501-502. The burden is on the debtor to sustain its objections to the claim, and debtor has the burden to overcome the prima facie correctness of the claim. In re Uneco," } ]

[ { "docid": "14136784", "title": "", "text": "the burden of going forward is primarily a procedural matter pertaining to the order of presenting evidence. The burden of proof is often outcome determinative, the burden of going forward is not. 1 Federal Rule of Bankruptcy Procedure 3001(f) prescribes that the evidentiary effect of a proof of claim that is executed and filed in accordance with the rules constitutes “prima facie evidence of the validity and amount of the claim.” Garner, 246 B.R. at 621. Litton contends that Rule 3001(f) operated to place the burden of proof on the debtor. Not so. The Supreme Court has clarified that the Rule 3001(f) “prima facie evidence” language does not address the burden of proof in an objection to claim proceeding. Raleigh, 530 U.S. at 22 n. 2, 120 S.Ct. 1951. It follows that, after Raleigh, Rule 3001(f) cannot be construed as allocating the burden of proof and, instead, operates merely as an evidentiary presumption that is rebuttable. The evidentiary presumption of a prima facie case operates to shift the burden of going forward but not the burden of proof. Garner, 246 B.R. at 622; Diamant v. Rasparian (In re So. Cal. Plastics, Inc.), 165 F.3d 1243, 1248 (9th Cir.l999)(al-though the creditor bears the ultimate burden of persuasion, the debtor must come forward with evidence to rebut the presumption of validity); 9 Collier ¶ 3007.01[1] (“once this burden of going forward to overcome the presumption is met, the ultimate burden is on the claimant”). Hence, at best, Litton’s $33,435.46 proof of claim was entitled to the Rule 3001(f) evidentiary presumption, which is capable of being rebutted. 2 Assuming, without deciding, that the evidentiary presumption did apply, the mechanics of what it takes to rebut the Rule 3001(f) presumption are driven by the nature of the presumption as “prima facie” evidence of the claim’s validity and amount. Garner, 246 B.R. at 621-22. The proof of claim is more than “some” evidence; it is, unless rebutted, “prima facie” evidence. Id. One rebuts evidence with counter-evidence. Id. Again assuming that the evi-dentiary presumption applied, the debtors satisfied the burden of going forward by proffering counter-evidence" }, { "docid": "10707283", "title": "", "text": "proof of claim constitutes prima facie evidence of the validity and amount of the claim. If a proof of claim is not filed in accordance with the Federal Rules of Bankruptcy Procedure, the claimant does not benefit from the presumption of validity and amount of the claim, and the claimant has “the initial burden of proving that a claim exists and the amount of the claim.” When the presumption of validity is present and a party in interest files an objection to the allowance of a claim, the well-established burdens of proof are as follows: The objecting party has the burden of going forward with evidence supporting the objection. See Abboud v. Abboud (In re Abboud), 232 B.R. 793, 796 (Bankr.N.D.Okla.), aff'd, 237 B.R. 777 (10th Cir. BAP 1999). Such evidence must be of probative force equal to that of the allegations contained in the proof of claim. See id. However, an objection raising only legal issues is sufficient. See In re Lenz, 110 B.R. 523, 525 (D.Colo.1990). Once the objecting party has reached this threshold, the creditor [claimant] has the ultimate burden of persuasion as to the validity and amount of the claim. See In re Harrison, 987 F.2d 677, 680 (10th Cir.1993). If the party seeking disallowance of a claim based on a writing raises a substantive objection under § 502(b) and presents sufficient evidence to refute at least one of the elements essential to the claim’s sufficiency, the burden of proof shifts back to the claimant to prove claimant has a valid claim against the debtor. 2. Required Attachments For Assigned Claims Based on Credit Card Debt This Court must decide whether Proof of Claim No. 3-1 and Amended Proof of Claim No. 9-2 substantially conformed to Official Form 10. If so, the proofs of claim serve as prima facie evidence of the validity and amount of the claims against the Debtor and the burden of production shifts to the Debtor to dispute the validity and amount of the claims. If not, then the proofs of claim are deprived of the presumption and the burden of persuasion" }, { "docid": "5133111", "title": "", "text": "1 have been filed, thus, the claim is an allowed secured claim in the amount of $58,-995.74. Although debtor did not object to claim 1, he filed a motion to value which resulted in an order valuing the collateral underlying claim 1 at $35,000.00. Pursuant to § 506(a) the valuation created two claims, a secured claim equal to the value of the security and an unsecured claim for the remaining amount. 11 U.S.C. § 506(a). Approximately two months after the valuation order and after the bar date, Standard Federal filed claims 10 and 11. Standard Federal filed claim 10 as a secured claim equal to the value of its collateral and claim 11 as a priority claim in the amount of $18,-269.97. Debtor argues that claim 11 should be disallowed because it was filed after the bar date and it was filed as a priority claim. Standard Federal concedes that the priority status and the amount of claim 11 are incorrect, that they are the result of a scrivener’s error, but argues that claim 11 is for the deficiency unsecured portion of claim 1 and, as such, is allowable. The objecting party has the burden to present affirmative evidence sufficient to rebut the prima facie validity of a claim. In re St. Augustine Gun Works, 75 B.R. 495 (Bankr.M.D.Fla.1987). Once the objecting party has carried its burden, claimant has the ultimate burden of showing that its claim is valid and in what amount. Id. Standard Federal admits that claim 11 is incorrect as filed, thus, Standard Federal must now establish the validity and amount of claim 11. The parties agree that Standard Federal’s total claim is equal to $58,995.74. Debtor listed Standard Federal’s claim in his schedules, financial statement and disclosure statement as a secured claim for that amount. However, in his plan of reorganization, debtor provided for payment of only $35,000.00 to Standard Federal. After the Court established the value of the building as $35,000.00, Standard Federal filed claim 10 for that amount. At the same time, Standard Federal filed claim 11 for $18,269.97. Based upon the timing of" }, { "docid": "2989152", "title": "", "text": "case based on the first and second mortgages, respectively, held on the Debtor’s residence (Claims No. 6 & 7). On November 3, 1997, this Court entered an Order Establishing Duties of Trustee and Debtor which required the Debtor to object to any claims within ten (10) days of the claim deadline which was set for March 18,1998 (Doc. No. 6). On or about November 18, 1998, long after the objection deadline had passed, both creditors amended their proofs of claims. RAI and Intercoastal filed amended proofs of claims to take into account additional late charges and post-petition arrearages. In-tercoastal also included cash advances it had made to the holder of the first mortgage, RAI (Claims No. 9 & 10). On February 5, 1999, an order confirming the Debtor’s Fourth Amended Chapter 13 Plan was entered (Doc. No. 36). The confirmed plan provided for payment of the RAI and Intercoastal amended claims in full. On April 12, 1999, two months after the confirmation of the Debtor’s Chapter 13 Plan, the Debtor filed her Objections to the amended claims of RAI and Intercoastal. The Debtor asserts that In-tercoastal did not actually make a cash advance of $5,409.36 to the first mortgage holder, RAI. Issue. The issue is whether a debtor may object to a secured claim after confirmation of the debtor’s Chapter 13 plan. RAI and Intercoastal (collectively, the “Creditors”) argue that the confirmation of a chapter 13 plan is res judicata as to any issues that could and should have been raised at the confirmation hearing and, furthermore, that a debtor cannot object to a secured claim after confirmation. The Debtor argues that, under § 502(j) of the Bankruptcy Code , a debtor can ask for reconsideration of a claim at any time before the case is closed. Reconsideration of an Allowed Claim. Under § 501(a), a creditor may file a proof of claim. Once filed, a proof of claim is prima facie evidence of both the validity of the claim and the amount. Fed. R.BaNK.P. 3001(f); In re St. Augustine Gun Works, Inc., 75 B.R. 495, 499 (Bankr.M.D.Fla.1987). The Bankruptcy" }, { "docid": "14136785", "title": "", "text": "burden of proof. Garner, 246 B.R. at 622; Diamant v. Rasparian (In re So. Cal. Plastics, Inc.), 165 F.3d 1243, 1248 (9th Cir.l999)(al-though the creditor bears the ultimate burden of persuasion, the debtor must come forward with evidence to rebut the presumption of validity); 9 Collier ¶ 3007.01[1] (“once this burden of going forward to overcome the presumption is met, the ultimate burden is on the claimant”). Hence, at best, Litton’s $33,435.46 proof of claim was entitled to the Rule 3001(f) evidentiary presumption, which is capable of being rebutted. 2 Assuming, without deciding, that the evidentiary presumption did apply, the mechanics of what it takes to rebut the Rule 3001(f) presumption are driven by the nature of the presumption as “prima facie” evidence of the claim’s validity and amount. Garner, 246 B.R. at 621-22. The proof of claim is more than “some” evidence; it is, unless rebutted, “prima facie” evidence. Id. One rebuts evidence with counter-evidence. Id. Again assuming that the evi-dentiary presumption applied, the debtors satisfied the burden of going forward by proffering counter-evidence proving payment of $240,020.13 and by credibly calling into question Litton’s assertion that the outstanding balance exceeded $15,149.04. Specifically, the debtors submitted a declaration that explained why the principal balance was $15,149.04, including a supporting table reflecting the payments they had made that led to the $15,149.04 balance. They also supplied a loan modification statement received from Litton that provided the principal balance on which they had based their calculations. Moreover, pursuant to the court’s request, the debtors submitted the closing documents regarding the refinance of their residence, which included, inter alia, checks from the chapter 13 trustee to Litton totaling $24,368.21 for postpetition payments and conflicting payoff statements. Thus, the debtors satisfied their burden of going forward. Once the debtors, as the objecting party, produced counter-evidence rebutting the claim, the burden of going forward would have shifted to Litton in the sense that it could provide further evidence to support its claim. The ultimate burden of proof as to the claim’s validity and amount in excess of the payments proved by the debtors, however," }, { "docid": "4008310", "title": "", "text": "Count X DLJ’s claim in the bankruptcy proceeding is that when it liquidated the securities in the Funds’ repo accounts pursuant to Option B, i.e., by crediting the value of the Funds’ securities to those accounts, the total value obtained fell short of what the Funds were required to pay to close the repo accounts. See PSA Agreement ¶ ll(d)(i)(B) (dealer may liquidate repo account by crediting defaulting party in amount equal to price of securities in account). DLJ seeks to have the Funds reimburse it for this claimed deficiency in the amount of approximately $9.9 million. A claim in bankruptcy must be disallowed if it is unenforceable against the debtor under non-bankruptcy law. See 11 U.S.C. § 502(b)(1). As the party objecting to the claim, the Funds have the burden of putting forth evidence sufficient to negate the prima facie validity of the bankruptcy claim. See In re St. Johnsbury Trucking Co., 206 B.R. 318, 323 (Bankr.S.D.N.Y.1997), aff'd 221 B.R. 692 (S.D.N.Y.1998), aff'd, 1999 WL 248153, 173 F.3d 846 (2d Cir.1999). The ultimate burden of persuasion to prove the loss claimed, however, remains with the claimant. See id. The Funds raise two arguments in opposition to DLJ’s claim. First, they contend that DLJ proceeded under Option A, rather than Option B, with respect to the 23 securities sold by March 31, 1994. Therefore, the Funds aver that DLJ was obligated to credit them with the proceeds from these sales. See PSA Agreement ¶ ll(d)(i)(A) (dealer may liquidate repo account by selling securities and crediting proceeds to obligation owed by defaulting party). Second, the Funds contend that, irrespective of whether DLJ proceeded under Option A or Option B, DLJ’s claim is subject to Article 2 of the N.Y. U.C.C., which limits a seller’s damages for a breach of contract to purchase securities to the contract price minus -resale proceeds. N.Y. U.C.C. § 2-706(1); see Bache & Co. v. Int’l Controls Corp., 339 F.Supp. 341, 349 (S.D.N.Y.), aff'd, 469 F.2d 696 (2d Cir.1972). This leaves the 8 securities not sold by March 31, and which were later sold by DLJ at" }, { "docid": "23230910", "title": "", "text": "(Bankr.W.D.Wash.2004). Thus, if a credit card creditor files a proof of claim meeting the standards of Bankruptcy Rule 3001(c) and Official Form 10, then Bankruptcy Rule 3001(f) is triggered, giving the creditor’s claim prima facie evidence of its validity. At that point: [T]he burden of going forward with the evidence then shifts to the objecting party to produce evidence at least equal in probative force to that offered by the proof of claim and which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. This can be done by the objecting party producing specific and detailed allegations that place the claim into dispute, by the presentation of legal arguments based upon the contents of the claim and its supporting documents, or by the presentation of pretrial pleadings, such as a motion for summary judgment, in which evidence is presented to bring the validity of the claim into question. If the objecting party meets these evidentiary requirements, then the burden of going forward with the evidence shifts back to the claimant to sustain its ultimate burden of persuasion to establish the validity and amount of the claim by a preponderance of the evidence. In re Rally Partners, LP, 306 B.R. 165, 168-169 (Bankr.E.D.Tex.2003) (citations omitted). In cases where the creditor has not met the standards of Bankruptcy Rule 3001 and Official Form 10, the claim is not automatically disallowed; rather, it is deprived of the prima facie validity which it could otherwise have obtained. See In re Los Angeles Int’l Airport Hotel Assoc., 196 B.R. 134, 139 (9th Cir. BAP 1996); see also Rally Partners, 306 B.R. at 169 (lack of documentation); In re Cluff, 313 B.R. at 331 (“Bankruptcy Rule 3001 does not provide substantive grounds for disallowance; it merely determines which party has the burden of proof.”). The documentation required by Bankruptcy Rule 3001 and Official Form 10 allows the debtor and the Chapter 13 Trustee to have enough information to fully determine whether or not a valid claim in the proper amount has been filed. However, lack of proper" }, { "docid": "10751082", "title": "", "text": "majority of courts hold that a failure to attach documents purportedly required by Fed. R.Bankr.P. 3001 and Official Form 10 is not, by itself, a basis for disallowance of claim.”) (collecting cases). However, in the face of a valid substantive objection, if the claim is based on a writing that is not attached to the proof of claim, and the presumption of validity does not arise, the claimant is held to the same standard of proof as if the claimant were establishing its claim in a non-bankruptcy forum. See Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15, 19-20, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000); First City Beaumont v. Durkay (In re Ford), 967 F.2d 1047, 1050 n. 6 (5th Cir.1992); Kirkland, No. NM-07-021, 379 B.R. at 347-48, 2007 WL 4465484, at *5 (\"In the face of a proper objection, the creditor will have to establish its claim at hearing, bearing whatever burden of proof exists in proving such a claim in a non-bankruptcy arena”); In re Leverett, 378 B.R. 793, 799-800 (Bankr.E.D.Tex.2007). In cases in which the debtor has not disputed the debt on its schedules, the admission of the debtor is some evidence of the validity and amount of the claim. But where the debt is disputed, the creditor cannot establish a prima facie case of breach of a credit card contract without establishing a contract with the debtor, a breach and damages. If the breach of contract claim has been assigned, the claimant also has the burden of establishing its right to assert the claim. See Burkett, 329 B.R. at 829-30 (\"if a proof of claim lacking proper attachments does not correlate to a debt scheduled by the debtor, or aspects of the claim differ from the scheduled debt, this may give rise to a valid objection by the debtor ... for lack of verification of ownership and/or the amount of the claim ... [A] failure to respond to the objection could lead to disallowance of the claim and, even if the creditor does respond, the creditor will carry the burden of going forward as well" }, { "docid": "20981535", "title": "", "text": "demonstrated that no violations of any federal statutes were specifically pled. Although, a very liberal reading of the Complaint may have given rise to some claims under traditional federal causes of action, because of the lack of specificity, at best, those additional claims concerning the alleged “illegal and predatory” and/or fraudulent schemes of Fairbanks, were vague and amorphous. The Complaint did set forth sufficient language to articulate a “traditional” objection to claim, i.e., the alleged failure of Fairbanks to properly credit her mortgage and other payments. Burdens of proof in bankruptcy litigation vary with the context and the cause of action asserted. As to those causes of action in this adversary forming the basis of fraud and predatory lending practices, the Debtor as Plaintiff, has the burden of proof. In re Verrone, 277 B.R. 66, 73 (Bankr.W.D.Pa.2002); Compagnie des Bauxites de Guinee v. Ins. Co. of N. Am., 551 F.Supp. 1239,1242 (W.D.Pa.1982) (“In civil cases, it is the Plaintiff who bears burden of proving its claim ... ”). Regarding those matters in the “traditional” nature of an objection to claim, the burden of proof shifts throughout the course of the proceeding. Initially the claimant, Fairbanks, must allege sufficient facts to support its claim and once done, the claim becomes prime facie valid. Thereafter, the burden of going forward shifts to the party objecting to the claim, here, the Debtor, to produce evidence to negate the prima facie validity of the claim. If the Debtor produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove validity of the claim by a preponderance of the evidence. In re Allegheny Intern., Inc., 954 F.2d 167 (3d Cir.1992); In re Chiro Plus, Inc., 339 B.R. 111, 113 (D.N.J.2006); In re United Companies Fin. Corp., 267 B.R. 524 (Bankr. D.Del.2000). In the concluding paragraph of her Complaint, the Debtor alleges, inter alia, that Fairbanks “took a default judgment fraudulently without providing any proof of the debt”. Complaint, p. 9. Debtor also references alleged “fraudulent schemes” involving Fairbanks at ¶ 38." }, { "docid": "19941273", "title": "", "text": "502(b), the court was required to treat the POC as prima facie evidence of the validity and amount of the claim, provided, that it was “executed and filed in accordance with” the Bankruptcy Rules, and presumably the Bankruptcy Code. If the POC was prima facie evidence of Wilson’s claim, the bankruptcy court was required to apply the following well-established burdens of proof: The objecting party has the burden of going forward with evidence supporting the objection. See Abboud v. Abboud (In re Abboud), 232 B.R. 793, 796 (Bankr.N.D.Okla.), aff’d, 237 B.R. 777 (10th Cir. BAP 1999). Such evidence must be of probative force equal to that of the allegations contained in the proof of claim. See id. However, an objection raising only legal issues is sufficient. See In re Lenz, 110 B.R. 523, 525 (D.Colo.1990). Once the objecting party has reached this threshold, the creditor [claimant] has the ultimate burden of persuasion as to the validity and amount of the claim. See In re Harrison, 987 F.2d 677, 680 (10th Cir.1993). Note, however, that if the POC were executed or filed improperly it was not prima facie evidence of Wilson’s claim, and Wilson would have the initial burden of proving that a claim exists and the amount of that claim. His failure to do so would require the disallowance of his claim. Proof of a claim, on the other hand, would shift the burden to the debtor, as the objecting party, to attack the validity of that claim either based on the law or evidence. The debtor’s failure to meet its burden would result in the allowance of Wilson’s claim. But, if the debtor met its burden, Wilson would have the ultimate burden to prove the validity and amount of his claim. Applying this law, the bankruptcy court did not err in entering the Claim Disallowance Order. Wilson’s POC is not prima facie evidence of the validity and amount of his claim, and other than the portion of the claim allowed in the Claim Allowance Order, Wilson failed to meet his initial burden of establishing a claim against the debtor." }, { "docid": "17478916", "title": "", "text": "facie evidence of the validity and amount of the claim.” Fed. R. Bankr.P. 3001(f); see also In re Long, 353 B.R. 1, 13 (Bankr.D.Mass.2006) (citing Juniper Dev. Group v. Kahn (In re Hemingway Transp., Inc.), 993 F.2d 915, 925 (1st Cir.1993)). In order to rebut the prima facie evidence a proper proof of claim provides, the objecting party must produce “substantial evidence” in opposition to it. See In re Long, 353 B.R. at 13; see also United States v. Clifford (In re Clifford), 255 B.R. 258, 262 (D.Mass.2000). If the objection is substantial, the claimant “is required to come forward with evidence to support its claims ... and bears the burden of proving its claims by a preponderance of the evidence.” Tracey v. United States (In re Tracey), 394 B.R. 635, 639 (1st Cir. BAP 2008) (citing In re Organogenesis, Inc., 316 B.R. 574, 583 (Bankr.D.Mass.2004)). Were we to determine this appeal based on issues pertaining solely to the allowance of the AmEx and eCast claims, the questions would be close. On the one hand, AmEx produced its original agreement with Mrs. Plourde, although the terms of the agreement as they existed through the life of the credit relationship remained in doubt. The AmEx agreement vested in AmEx the right to amend its terms at will. Thus, as the bankruptcy judge concluded, one could not be sure exactly for what AmEx charged the account without a far more careful and comprehensive itemization than AmEx chose to provide. For the bankruptcy judge, those failings were enough to order the claim’s disallowance. But we wonder whether, putting questions about priority to the side, one could conclude as a matter of law that AmEx had not proved estate liability on its claim. After all, it did produce the credit agreement and a series of statements showing the balances owed. eCast, on the other hand, produced no agreement, but relied upon the Plourdes’ scheduling of the identically-numbered GM Card debt, with a balance approximating the amount of eCast’s proof of claim. For the bankruptcy judge, that was sufficient proof to allow eCast’s claim, granting" }, { "docid": "23230911", "title": "", "text": "back to the claimant to sustain its ultimate burden of persuasion to establish the validity and amount of the claim by a preponderance of the evidence. In re Rally Partners, LP, 306 B.R. 165, 168-169 (Bankr.E.D.Tex.2003) (citations omitted). In cases where the creditor has not met the standards of Bankruptcy Rule 3001 and Official Form 10, the claim is not automatically disallowed; rather, it is deprived of the prima facie validity which it could otherwise have obtained. See In re Los Angeles Int’l Airport Hotel Assoc., 196 B.R. 134, 139 (9th Cir. BAP 1996); see also Rally Partners, 306 B.R. at 169 (lack of documentation); In re Cluff, 313 B.R. at 331 (“Bankruptcy Rule 3001 does not provide substantive grounds for disallowance; it merely determines which party has the burden of proof.”). The documentation required by Bankruptcy Rule 3001 and Official Form 10 allows the debtor and the Chapter 13 Trustee to have enough information to fully determine whether or not a valid claim in the proper amount has been filed. However, lack of proper supporting documentation does not, in and of itself, result in a claim’s disallowance; rather, it strips it of any prima facie validity, requiring the creditor to offer the supporting documentation to carry its burden of proof in the face of an objection. Benison testified that the written documentation of the credit card agreement, and amendments thereto, and the transaction records involved that make up the written record of the debt owed by the debtor, would amount to hundreds of pages of documents in most cases. See e.g., In re Kemmer, 315 B.R. at 715; In re Cluff, 313 B.R. at 336. As a result, requiring each credit card creditor to submit hundreds of pages of supporting documentation with its proof of claim would be unduly burdensome to both the creditor and those that have to review the claims for their validity, including the Chapter 13 Trustee and each debtor’s attorney. Because of the voluminous nature of the supporting documentation involved with credit card agreements and the individual transaction records evidencing the debt, Official Form 10" }, { "docid": "8093782", "title": "", "text": "to those exemptions provided under the state law. 11 U.S.C. § 522(b); In re Podzamsky, 122 B.R. 596, 598 (Bankr.M.D.Fla.1990). The State of Florida has exercised this option. Id.; Fla. Stat. § 222.20 (1995). Therefore, a debtor who is a Florida resident may claim exemptions pursuant to subsections 522(b)(2)(A)-(B), Article X, Section 4 of the Florida Constitution and Fla.Stat. ch. 222. The objector has the burden of proving, by preponderance of the evidence, that the Debtor is not entitled to the exemptions claimed. In re Rightmyer, 156 B.R. 690, 692 (Bankr.M.D.Fla.1993). Once the objector has made a prima facie showing that the claimed exemptions should be disallowed, the burden then shifts to the Debtor to prove that the exemptions are legally valid. Id. In this case, GW asserts that Debtor’s claim of exemptions to various properties are improper and should be disallowed. GWs objection are: (1) the existence of fraudulent-conversion of non-exempt assets to exempt assets; (2) certain funds are not property of the estate; and (3) certain properties are not exempt. The Court will address each basis accordingly. A. FRAUDULENT CONVERSION GW first asserts that certain shares of stock, as enumerated in paragraph 8 of the above Findings of Fact, are not exempt because they were obtained from fraudulently converted non-exempt funds. (Doc. 37). Debtor responds that the shares of stock are exempt as properties held in tenancy by the entireties. Under section 522(b)(2)(B) of the Bankruptcy Code, “an individual debtor may exempt from property of the estate ... any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable non-bankruptcy law.” 11 U.S.C. § 522(b)(2)(B) (1994). In Florida, a tenancy by the entire-ties estate is properly created in either personalty or realty when the unities of possession, interest, title, time and marriage are satisfied. In re Stanley, 122 B.R. 599, 604 (Bankr.M.D.Fla.1990). In matters involving personalty, in addition to satisfying the" }, { "docid": "17427560", "title": "", "text": "the requirements of Rule 3001(c), the claim will not be considered prima facie valid as to the claim or amount. See In re Henry, 311 B.R. 813, 817 (Bankr.W.D.Wash.2004) (citations omitted). If a party objects to the claim, the objecting party carries the burden of going forward with evidence to overcome the prima facie validity and amount of the claim. See In re Dow Coming Corp., 250 B.R. 298, 321 (Bankr.E.D.Mich.2000) (citing Juniper Dev. Group v. Kahn, 993 F.2d 915, 925 (1st Cir.1993) and In re Holm, 931 F.2d 620, 623 (9th Cir.1991)). If the objecting party produces evidence to refute at least one of the allegations essential to the claim’s legal sufficiency, the burden of persuasion shifts back to the claimant. Id. (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The claimant ultimately bears the burden of proving the validity of the claim by a preponderance of the evidence. Id.; accord In re Hollars, 198 B.R. 270, 271 (Bankr.S.D.Ohio 1996). rv ANALYSIS A. Parties ’ Arguments The basis of Debtor’s objections is that the documents attached by eCAST to its proof of claims are insufficient to establish its claims. Debtor contends that such documents fail to either prove eCAST’s role as an assignee or agent of Debtor’s original creditors. In addition, Debtor contends that eCAST did not attach any documentation from Debtor’s original creditors. As a result, Debtor alleges that she cannot be assured that when she receives her discharge that it will be effective against her original creditors. Debtor seeks the disallowance of eCAST’s claims. In response, eCAST contends that it is not required under the Bankruptcy Code or the Federal Rules of Bankruptcy Procedure to provide Debtor with proof of either its role as an agent of Chase Manhattan Bank or assignee of Associates. Despite its argument, eCAST attached exhibits to its response to Debtor’s Objection to eCAST’s claims. These exhibits consist of documents entitled “Assignment of Accounts” (Assignments) that were executed by Chase Manhattan Bank and Associates. See Exhibits D and E to “Response of ECAST Settlement Corporation to Debt- or’s Objection" }, { "docid": "12644769", "title": "", "text": "Tulsa County, Oklahoma (“State Court”). In the State Court Action, Debtor argued that the statute of limitations had run on the Contract for Deed, thereby preventing Thomas from enforcing the same. The State Court rejected this argument and explicitly found, based on Oklahoma case law, that it would be “... error to cancel [a] mortgage on the ground that it is stale and unenforceable, and defendant should have been required as a condition to cancellation, to pay the amount secured thereby under the equitable rule that he who seeks equity must do equity.” See State Court Judgment at p. 4 citing Warner v. Wickizer, 146 Okla. 232, 294 P. 130 (1930). On February 2, 1998, the State Court Judgment was entered in favor of Thomas and against Debtor in the amount of $174,916.30, plus costs, with interest accruing after May 2, 1997, at the rate of ten percent (10%) per annum. The State Court Judgment recognized the validity of the lien held by Thomas on the Property, and ordered the sale of the Property. The State Court-Judgment has been appealed to the Supreme Court of the State of Oklahoma (the “Appeal”). The Appeal is pending at this time. Burden of Proof Federal Rule of Bankruptcy Procedure 3001(f) states that “a proof of claim executed and filed shall constitute prima facie evidence of the validity of the amount of the claim,” thereby putting the initial burden on the objecting party. Fed.R.Bankr.P. 3001(f). The objecting party carries the burden of going forward with evidence supporting his objection to the validity of the amount of the claim. Matter of Townview Nursing Home, 28 B.R. 431 (Bankr.S.D.N.Y.1983); In re Breezewood Acres, Inc., 28 B.R. 32 (Bankr.M.D.Pa.1982). Such evidence must be of a probative force equal to that of the allegations of the creditor’s proof of claim. 3 Collier on Bankruptcy, P 502.01[3] p. 502-17 (Rel.10-9/83). If the objecting party succeeds in overcoming the prima facie effect of the proof of claim, the ultimate burden of persuasion then rests on the claimant. Matter of Texlon, 28 B.R. 525 (Bankr.S.D.N.Y.1983). In re Wells, 51 B.R. 563," }, { "docid": "7455978", "title": "", "text": "promotes prompt confirmation of plans and, hence, prompt payments to creditors by the Chapter 13 Trustee. That being the case here, because valuation in the plan confirmation context implicates claim allowance, it is appropriate to apply the burden of providing evidence normally applicable in the claims allowance context. Rule 3001(f) of the Federal Rules of Bankruptcy Procedure provides that a properly executed proof of claim is pri-ma facie evidence of the validity and amount of the claim. A party in interest may, however, file a written objection to a proof of claim. If an objection to a claim is supported by sufficient evidence to rebut the presumption, the burden of proving the validity and amount of the claim shifts back to the claimant. In other words, once sufficient evidence is offered to rebut the prima facie validity of a proof of claim, the respective parties have the same burden of proof they would have under non-bankruptcy law. As discussed in more detail below, Mrs. Coleman testified as to value at the hearing on confirmation. That evidence was sufficient to rebut the prima facie validity of Green Tree’s claim as to the Mobile Home’s value. Thus, the initial burden of proving value shifted to Green Tree. I recently issued a decision discussing the valuation of vehicles in light of BAPC-PA’s new definition of “replacement value” in § 506(a)(2). That section provides: If the debtor is an individual in a case under chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined. This definition clarified that a court is to use retail merchant values, taking the condition of the vehicle into account, and using the value at" }, { "docid": "2989153", "title": "", "text": "amended claims of RAI and Intercoastal. The Debtor asserts that In-tercoastal did not actually make a cash advance of $5,409.36 to the first mortgage holder, RAI. Issue. The issue is whether a debtor may object to a secured claim after confirmation of the debtor’s Chapter 13 plan. RAI and Intercoastal (collectively, the “Creditors”) argue that the confirmation of a chapter 13 plan is res judicata as to any issues that could and should have been raised at the confirmation hearing and, furthermore, that a debtor cannot object to a secured claim after confirmation. The Debtor argues that, under § 502(j) of the Bankruptcy Code , a debtor can ask for reconsideration of a claim at any time before the case is closed. Reconsideration of an Allowed Claim. Under § 501(a), a creditor may file a proof of claim. Once filed, a proof of claim is prima facie evidence of both the validity of the claim and the amount. Fed. R.BaNK.P. 3001(f); In re St. Augustine Gun Works, Inc., 75 B.R. 495, 499 (Bankr.M.D.Fla.1987). The Bankruptcy Code further provides that “(a) claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects.” 11 U.S.C. § 502(a) (1999). Furthermore, a confirmed chapter 13 plan binds both the debtor and creditor to the provisions of the plan. Section 1327(a) provides that “[T]he provisions of a confirmed plan bind the debtor and each creditor, ... whether or not the creditor has objected to, has accepted, or has rejected the plan.” 11 U.S.C. § 1327(a) (1998). Accordingly, a confirmed plan is res judicata as to any issues resolved or subject to resolution at the confirmation hearing. Among these issues is the amount of a secured claim. Under § 1325(a)(5)(B)(ii), a chapter 13 plan must pay the full value of any allowed secured claim. 11 U.S.C. § 1325(a)(5)(B)(ii) (1998). Accordingly, the value of a secured claim is fixed as of the effective date of the plan. In re Dunlap, 215 B.R. 867, 869 (Bankr.E.D.Ark.1997). However, there are a few very limited exceptions to" }, { "docid": "5133112", "title": "", "text": "is for the deficiency unsecured portion of claim 1 and, as such, is allowable. The objecting party has the burden to present affirmative evidence sufficient to rebut the prima facie validity of a claim. In re St. Augustine Gun Works, 75 B.R. 495 (Bankr.M.D.Fla.1987). Once the objecting party has carried its burden, claimant has the ultimate burden of showing that its claim is valid and in what amount. Id. Standard Federal admits that claim 11 is incorrect as filed, thus, Standard Federal must now establish the validity and amount of claim 11. The parties agree that Standard Federal’s total claim is equal to $58,995.74. Debtor listed Standard Federal’s claim in his schedules, financial statement and disclosure statement as a secured claim for that amount. However, in his plan of reorganization, debtor provided for payment of only $35,000.00 to Standard Federal. After the Court established the value of the building as $35,000.00, Standard Federal filed claim 10 for that amount. At the same time, Standard Federal filed claim 11 for $18,269.97. Based upon the timing of Standard Federal’s filing of claims 10 and 11, the amount of claim 10, debtor’s listing of Standard Federal’s claim as secured for $58,995.74 in his schedules, financial statement and disclosure statement, the Court is satisfied that claim 11 is an unsecured claim for the deficiency portion of claim 1. Accordingly, the Court finds that claim 11 is a claim for the unsecured portion of its original $58,995.74 secured claim. Amendment to Claim Standard Federal argues that claim 11 amends its timely filed and allowed secured claim and thus should be allowed. In addition, Standard Federal argues that the motion to value automatically bifurcated claim 1 creating an allowed secured claim and an allowed unsecured claim eliminating any need to file amendments to its claim. Debtor argues that claim 11 should be disallowed because it was untimely filed and because Standard Federal failed to receive leave of the Court to amend claim 1. In In re Intern. Horizons, Inc., 751 F.2d 1213 (11th Cir.1985) the Eleventh Circuit held that amendments to claims should be freely allowed" }, { "docid": "17427558", "title": "", "text": "4. First, the information contained in the summary pertains to Debtor’s credit card account with Associates. Second, it includes a statement that the alleged account balance does not include any interest or fees that may have accrued post-petition. Once again, the summary attached to eCAST’s Claim No. 5 is unsigned. On June 9, 2004, Debtor filed objections to the claims filed by eCAST. On July 1, 2004, eCAST filed a response to Debtor’s objections. A hearing on Debtor’s objections was held on July 15, 2004. After the parties presented their arguments, the Court took the matter under advisement. Ill LAW ON ALLOWANCE OF CLAIMS The Bankruptcy Code permits a creditor to file a proof of claim either executed by the creditor, or by the creditor’s authorized agent. 11 U.S.C. § 501(a); Fed. R. Bankr.P.3001(b). A proof of claim is deemed allowed unless an objection is filed. 11 U.S.C. § 502(a). If an objection is filed, a hearing is held by the bankruptcy court to determine whether the claim should be allowed or disallowed and the amount of the claim. 11 U.S.C. § 502(b); See Pension Benefit Guar. Corp. v. Belfance, (In re CSC Industries, Inc.), 232 F.3d 505, 509 (6th Cir.2000) (“bankruptcy courts have the statutory authority to determine the allowability and amount of’ claims). During the claims allowance process, the burden of proof shifts between the parties. Initially, a creditor bears the burden of establishing its claim. See Fed. R. Bankr.P. 3001(f). If a claim is based on a writing, a copy of the writing is to be filed along with the proof of claim. Fed. R. Bankr.P.3001(c). Once a creditor properly executes and files a proof of claim in accordance with the Federal Rules of Bankruptcy Procedure, its proof of claim is considered “prima facie evidence of the validity and amount of the claim.” Fed. R. Bankr.P. 3001(f); In re Stoecker, 5 F.3d 1022, 1028 (7th Cir.1993); Ashford v. Consolidated Pioneer Mortgage, (In re Consolidated Pioneer Mortgage), 178 B.R. 222 (9th Cir. BAP 1995). Generally, courts have held that when a proof of claim fails to comply with" }, { "docid": "17427559", "title": "", "text": "amount of the claim. 11 U.S.C. § 502(b); See Pension Benefit Guar. Corp. v. Belfance, (In re CSC Industries, Inc.), 232 F.3d 505, 509 (6th Cir.2000) (“bankruptcy courts have the statutory authority to determine the allowability and amount of’ claims). During the claims allowance process, the burden of proof shifts between the parties. Initially, a creditor bears the burden of establishing its claim. See Fed. R. Bankr.P. 3001(f). If a claim is based on a writing, a copy of the writing is to be filed along with the proof of claim. Fed. R. Bankr.P.3001(c). Once a creditor properly executes and files a proof of claim in accordance with the Federal Rules of Bankruptcy Procedure, its proof of claim is considered “prima facie evidence of the validity and amount of the claim.” Fed. R. Bankr.P. 3001(f); In re Stoecker, 5 F.3d 1022, 1028 (7th Cir.1993); Ashford v. Consolidated Pioneer Mortgage, (In re Consolidated Pioneer Mortgage), 178 B.R. 222 (9th Cir. BAP 1995). Generally, courts have held that when a proof of claim fails to comply with the requirements of Rule 3001(c), the claim will not be considered prima facie valid as to the claim or amount. See In re Henry, 311 B.R. 813, 817 (Bankr.W.D.Wash.2004) (citations omitted). If a party objects to the claim, the objecting party carries the burden of going forward with evidence to overcome the prima facie validity and amount of the claim. See In re Dow Coming Corp., 250 B.R. 298, 321 (Bankr.E.D.Mich.2000) (citing Juniper Dev. Group v. Kahn, 993 F.2d 915, 925 (1st Cir.1993) and In re Holm, 931 F.2d 620, 623 (9th Cir.1991)). If the objecting party produces evidence to refute at least one of the allegations essential to the claim’s legal sufficiency, the burden of persuasion shifts back to the claimant. Id. (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The claimant ultimately bears the burden of proving the validity of the claim by a preponderance of the evidence. Id.; accord In re Hollars, 198 B.R. 270, 271 (Bankr.S.D.Ohio 1996). rv ANALYSIS A. Parties ’ Arguments The basis of Debtor’s" } ]

[ { "docid": "23648430", "title": "", "text": "debtor with respect to any debt discharged under Section 727, 944, 1141, or 1328 of this Title, whether or not discharge of such debt is waived; (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived;” In general, § 524 protects the debt- or from any subsequent action by a creditor whose claim has been discharged in the Bankruptcy case. Section 524 ensures that a discharge will be completely effective and operate as an injunction against enforcement of a judgment or the commencement or continuation of an action in other courts to collect or recover a debt as a personal liability of the debtor. 3 Collier on Bankruptcy, ¶ 524.01 at 524-4 (15th Ed.1985); In re Sands, 24 B.R. 688 (Bankr.D.R.I.1982). See, also, Campbell v. General Financing Corp. of Virginia, 523 F.Supp. 989 (W.D.Va.1981) (Discharge releases the debtor from any legal duty to repay the debt.) However, as § 524(e) recognizes, “except as provided in subsection (a)(3) of this Section, discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” Whereas the provisions of § 524 are intended to protect the debtor from personal liability, § 524(e) indicates that it was not to affect the liability of third parties nor prevent establishing such liability through whatever means required. 3 Collier on Bankruptcy, supra, at 524-15. In discussing the scope of § 524(d)(1)(A) and (2), Collier notes that “when it is necessary to commence or continue a suit against a debtor in order, for example, to establish liability of another, ... such suit would not be barred.” Id. Numerous courts have addressed the lifting of the § 362 automatic stay to permit continuation of litigation against the debtor in other forums. See, e.g., In re Curtis, 40 B.R. 795 (Bankr.D.Ut.1984); In re Phillips, 40 B.R. 194 (Bankr.D.Col.1984); In re Huffman," } ]

[ { "docid": "9330072", "title": "", "text": "(1984). . Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir.1985); In re Sago Palms Joint Venture, 39 B.R. 9, 10 (Bankr.S.D.Fla.1984); In re Inforex, 26 B.R. 515, 518 (Bankr.D.Mass.1983); NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 943-44 (6th Cir.1986). . The statute reads, Effect of discharge (e) Except as provided in subsection (a)(3) of this section, discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt. 11 U.S.C. § 524(e) . The statute states in pertinent part that, (a) A discharge in a case under this title (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived.... 11 U.S.C. § 524(a)(2) . A relevant excerpt from the legislative history of section 524 states, Subsection (a) specifies that a discharge in a bankruptcy case voids any judgment to the extent, that it is a determination of the personal liability of the debtor with respect to a prepetition debt, and operates as an injunction against the commencement or continuation of an action, the employment of process, or any act, including telephone calls, letters, and personal contacts, to collect, recover, or offset any discharged debt as a personal liability of the debtor, or from property of the debtor, ... The injunction is to give complete effect to the discharge and to eliminate any doubt concerning the effect of the discharge as a total prohibition on debt collection efforts, (emphasis added). H.Rep. No. 95-595, 95th Cong., 1st Sess. (1977) p. 365, U.S.Code Cong. & Admin.News 1978, p. 6321." }, { "docid": "13855414", "title": "", "text": "126 B.R. 253, 255 (Bankr. E.D.Tex.1991) (discharge order does not bar continuation of state court action to determine liability of debtor solely as a prerequisite to recovery from debtor’s insurance carrier); In re Peterson, 118 B.R. 801, 804 (Bankr.D.N.M.1990) (injunction provided by § 524 does not bar FDIC from establishing the liability of the debtor so as to proceed against bank employee insurer); In re Traylor, 94 B.R. 292, 293 (Bankr. E.D.N.Y.1989) (discharge does not release debtor’s insurer from liability); In re Lembke, 93 B.R. 701, 702-03 (Bankr. D.N.D.1988) (section 524 injunction permits suit to recover from debtor’s insurer); In re White, 73 B.R. 983, 984-86 (Bankr. D.D.C.1987) (injunction issued pursuant to debtor’s discharge does not bar a lawsuit against the debtor that will affect only the assets of the debtor’s insurer); In re Mann, 58 B.R. 953, 959 (Bankr.W.D.Va. 1986) (section 524 does not prohibit tort claimant from maintaining a pending suit against discharged debtor to effectuate recovery under claimant’s uninsured motorist coverage). Some courts have reached the same result by modifying the injunction to permit the tort suit to continue. See, e.g. In re Walker, 927 F.2d 1138, 1142-44 (10th Cir.1991) (section 524(e) permits a creditor to bring a direct suit against the debtor where establishment of the debtor’s liability is a prerequisite to recovery from a state fund); In re Domer, 125 B.R. 198, 202 (Bankr.N.D.Ohio 1991) (modification of section 524 injunction appropriate to enable defendant in tort action to establish debt- or’s liability for purposes of setoff and apportionment); In re McGraw, 18 B.R. 140, 143 (Bankr.W.D.Wis.1982) (section 524 injunction can be modified to permit continuation of suit provided that creditors are enjoined from collecting any judgment from debtor). Yet other courts have applied similar reasoning in deciding to grant a tort claimant relief from the automatic stay. See, e.g. In re Femstrom Storage and Van Co., 938 F.2d 731 (7th Cir.1991); Elliott v. Hardison, 25 B.R. 305 (E.D.Va. 1982); In re Honosky, 6 B.R. 667 (Bankr. S.D.W.Va.1980). One of these cases, In re Jet, merits further discussion because, even though the debtor sought protection under" }, { "docid": "3820108", "title": "", "text": "damages from a third party. Debtor Loewen Group argued that its discharge under Section 524(a), 11 U.S.C. § 524(a), made it impossible for a plaintiff to maintain an action against Loewen Group as a defendant because the Section 524(a) discharge either (1) voided any suit against Loewen Group or (2) rendered moot any suit against Loewen Group. I quote liberally from Judge O’Neill’s opinion: I have not found any case that considers whether a plaintiff may sue a bankrupt debtor whose debts have been discharged under 11 U.S.C. § 524(a) solely to establish the debtor’s liability and collect from co-defendants under [the grounds asserted in the litigation]. Analogous cases, however, suggest that such a suit is permissible, and that I need not modify debtor defendant’s § 524(a) injunction for the suit to proceed. [Citations omitted.] These decisions rely primarily on 11 U.S.C. §§ 524(a) and 524(e). Section 524(a)(2) says that a bankruptcy discharge “operates as an injunction against the commencement or continuation of an action, the employment of process, or an act to collect, recover, or offset any such debt as a personal liability of the debtor.” Courts that have allowed suits to proceed against bankrupt defendants have reasoned that § 524(e) trumps § 524(a); § 524(e) states that “discharge of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” In other words, these courts have refused to permit bankruptcies to relieve third parties, typically insurers, from their obligations .... Loewen Group next argues that plaintiffs’ claim is moot, because “it will never be possible for defendant to provide any relief.” [Citations omitted.] As a technical matter, this is true; shielded by its § 524(a) bankruptcy discharge, Loewen Group will never have to pay anything to plaintiffs. Loewen Group, however, ignores the cases that allowed plaintiffs to sue debtor defendants despite not being able to collect from them directly. [Citations omitted.] Loewen Group, 2004 WL 1853137, at *23-24. Judge O’Neill concluded that the litigation against Loewen Group could continue, its discharge notwithstanding. Similarly, the Court in In" }, { "docid": "14779432", "title": "", "text": "against American Cable Systems in the Superior Court Department of the Trial Court of the Commonwealth of Massachusetts. The Debtor filed a petition under Chapter 7 of the Bankruptcy Code in August, 1987, and a discharge order was entered on January 8, 1988. The Trustee’s final report has long been on file, but because of the various motions filed herein by the movant, this case has not been closed. The filing of a petition in bankruptcy operates as a stay, applicable to all entities, of the commencement or continuation of a judicial proceeding against the debtor that was or could have been commenced before the commencement of the bankruptcy case. 11 U.S.C. section 362(a)(1). The stay continues in effect until the case is closed or dismissed. 11 U.S.C. section 362(c)(2). Moreover, a discharge issued pursuant to 11 U.S.C. section 727 operates as a permanent injunction against the commencement or continuation of an action to recover any debt discharged thereunder as a “personal liability” of the debtor. 11 U.S.C. section 524(a)(2). However, the “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” 11 U.S.C. section 524(e). Therefore, as far as the Bankruptcy Code is concerned, any personal liability the Debtor may have had to Kelly has been discharged. Kelly may not maintain an action to recover that debt from the Debt- or. Nonetheless, the discharge of the Debtor’s liability to Kelly did not discharge or otherwise affect the liability of any other entity — whether it be the Debtor’s insurer, his employer, his employer’s insurer, a joint tortfeasor, or any other party — on that debt. The question raised by this motion is whether Kelly may bring suit against the Debtor on the discharged debt, not to recover the debt as a personal liability of the Debtor, but in order to recover the debt from a third party. The courts that have considered this issue agree that the movant may maintain such a suit against the Debt- or. I agree with their reasoning." }, { "docid": "3825772", "title": "", "text": "of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived.... 11 U.S.C. § 524 (1988). This case concerns the interplay of §§ 362, 727 and 524. The automatic stay, effective at time of the bankruptcy filing, is a temporary injunction against most actions by creditors. See In re Bialac, 712 F.2d 426, 431 (9th Cir.1983); In re Aldrich, 34 B.R. 776, 779 (9th Cir. BAP 1983). The automatic stay can be dissolved by order of the court, as in this ease, or it is dissolved upon the earliest of the closing of the case, the dismissal of the case or at the time a discharge is granted or denied. § 362(e); Watson, 78 B.R. at 235. If a discharge is granted, the automatic stay is replaced by the permanent injunction of § 524. Section 524 enjoins creditors from attempting to collect from the debtor or the debtor’s assets debts that have been discharged in bankruptcy. Beeney, 142 B.R. at 362. The “injunctive provisions form a comprehensive scheme to protect the debtor and estate assets from precipitous creditor actions which might frustrate the purposes of the bankruptcy proceedings.” Watson, 78 B.R. at 235. Forum shopping by the debtor after the discharge issue has been fully litigated and lost in the state courts is not the type of offensive conduct which § 524 was designed to protect. Getzoff, 180 B.R. at 575 (citing In re Petersen, 110 B.R. 946, 950 (Bankr.D.Colo.1990) (section 524(c) is intended to be used as a shield to protect the debtor rather than a sword against the creditor)). The automatic stay was lifted as to litigation over, and collection of, the accounts. If the automatic stay no longer applied to the accounts following the order for stay relief, then neither did the § 524 injunction apply to the state court litigation for collection of those accounts following Watson’s discharge. The record shows that the superior court adjudicated the issue of the applicability of §" }, { "docid": "7161843", "title": "", "text": "fraud pursuant to 11 U.S.C. § 523(a)(2), breach of fiduciary duty pursuant to 11 U.S.C. § 523(a)(4), and intentional acts based on § 523(a)(6), is tantamount to establishing non-dischargeability.” This district court held that the bankruptcy court made a factual determination that the claims Ackerman and Kuriloff sought to arbitrate “go to the issue of dischargeability,” and that “arbitration of dischargeability inherently conflicts with the goals of centralized resolution of bankruptcy issues, preventing piecemeal litigation, and the power of a bankruptcy court to enforce its own orders.” A. Relevant Provisions of the Bankruptcy Code When a bankruptcy petition is filed, § 362 automatically provides the debtor with a broad stay against certain actions by creditors. Section 727(a) states that “[t]he court shall grant the debtor a discharge” unless certain circumstances existed, none of which was applicable in this case. If and when a debtor is granted discharge, as Eber was here, § 362’s automatic stay dissolves and is replaced by a permanent injunction under § 524. Section 524(a) in relevant part provides that a discharge under Title 11: (1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727 ...; (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, The permanent injunction under § 524(a)(2), therefore, enjoins creditor actions related to discharged debts. But § 727(b) provides in pertinent part: Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter, As such, § 524 does not enjoin creditors who have successfully invoked § 523, which provides a list of exceptions to discharge, from taking action. See also In re Aldrich, 34 B.R. at 779 (explaining how §§ 362, 523, 524, and 727 work together). Exceptions to" }, { "docid": "243345", "title": "", "text": "an injunction against the commencement or continuation of an action, the employment of process, or any act, to collect, recover or offset any such debt as a personal liability of the debtor, or from property of the debtor, whether or not discharge of such debt is waived, (emphasis added). Section 524(a)(2) enjoins the commencement or continuation of any action to collect or recover the discharged debt, releases the debtor from any legal duty to repay the obligation and renders the debt uncollecti-ble by any legal process. See, e.g., Campbell v. General Finance Corp., 523 F.Supp. 989, 992 (W.D.Va.1981); In re Dickinson, 24 B.R. 547, 550 (Bkrtcy.S.D.Cal.1982) (discharge operates as permanent injunction against collection of debt and any post-discharge attempt to collect debt is basis for contempt). The entry of a discharge in bankruptcy has a broader effect than § 362 on criminal proceedings which involve the collection or recovery of debt. The discharge injunction replaces the protection afforded a debtor by the automatic stay. Unlike the stay of § 362, there is no exception to the § 524 discharge injunction for criminal proceedings against the debtor. A criminal proceeding continued or initiated to recover or collect a discharged debt is enjoined by the § 524 discharge injunction and falls outside of the protection otherwise afforded by the Anti-Injunction Act. Considerations of comity and equity are overcome by the stated Congressional preference to protect discharged debtors in bankruptcy: A Bankruptcy Court must exercise its jurisdiction to determine whether a given criminal proceeding has been instituted as a method for the collection of a civil debt dischargeable under the Code. Were bankruptcy courts to permit prosecutions which have as their ultimate purpose the collection of debts to proceed in state criminal courts unimpeded and unsupervised, an intolerable distortion of the elaborate machinery of the bankruptcy laws devised to fix the rights of creditors against the Debtor and the Debtor’s property would be created. In such instances, comity dictates that federal, rather than state, interests prevail. Taylor v. Widdowson, 16 B.R. at 326. If Congress had intended to limit the scope of the" }, { "docid": "13847994", "title": "", "text": "December 17, 1987, but withdrew the motion upon assurances by the Debt- or’s insurance company that it would appear and defend on his behalf. This precipitated several unsuccessful efforts to have the state court sever the claim against Steier from that of the Debtor. The state court refused, suggesting Fettig pursue the instant relief in bankruptcy court. The Debtors obtained a discharge on February 10, 1988, and on September 26, 1988, Fettig moved to reopen the case so that relief from the § 524 injunction might be obtained and he be thereby free to pursue his remedies under state law. Fettig, both by his motion and at the hearing held on October 26, 1988, has assured this court that no relief is sought against the Debtor personally or his estate but instead he seeks only to determine the Debtor’s liability and that of his insurance company. Both sides have thoroughly briefed the is-sué. Section 524(a)(2) relied upon by the Debtors provides: (a) A discharge in a case under this title (2) operates as an injunction against the commencement or continuation of an action, the employment or process, or an act, to collect, recover or offset such debt as a personal liability of the debtor, whether or not discharge of such debt is waived; (emphasis added). That the prohibition of section 524(a)(2) is limited only to efforts seeking recovery from the Debtor personally, is evident from section 524(e) which specifically excludes from its operation efforts to recover from other entities who might be liable for the discharge debt. “Except as provided in subsection (a)(3) of this section [irrelevant to the instant circumstances], discharge of a debt of the debtor does not effect the liability of any other entity on, or the property of any other entity for, such debt.” 11 U.S.C. § 524(e). What is important to keep in mind is that a discharge in bankruptcy does not extinguish the debt itself but merely releases the debtor from personal liability which, by virtue of section of 524(a)(2) bars its enforcement against him. The debt still exists, however, and can be collected" }, { "docid": "13855412", "title": "", "text": "respect to any debt discharged ...; (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debt- or.... 11 U.S.C. § 524(a) (1988) (emphasis added). The relief accorded the debtor by these provisions does not extend to other parties: Except as provided in subsection (a)(3) of this section, discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt. 11 U.S.C. § 524(e) (1988) (emphasis added). Together, the language of these sections reveals that Congress sought to free the debtor of his personal obligations while ensuring that no one else reaps a similar benefit. See 3 R. Babitt et al., Collier on Bankruptcy ¶ 524.01 at 524-16 (15th ed. 1991). The legislative history accords with this view. For example, the Senate Report explains that § 524 was designed “to insure that once a debt is discharged, the debtor will not be pressured in any way to repay it.” S.Rep. No. 989, 95th Cong., 2d Sess. 80-81 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5866. The protection afforded by the discharge injunction thus furthers one of the primary purposes of the Bankruptcy Code — that the debtor have the opportunity to make a “financial ‘fresh start.’ ” In Re Jet Florida Systems, Inc., 883 F.2d 970, 972 (11th Cir.1989) (per cu-riam) (citing Thomas H. Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 Harv.L.Rev. 1393, 1396-97 (1985)). Numerous courts, confronted with a tort claimant who seeks to proceed against a discharged debtor only for the purpose of recovering against an insurer, have relied on §§ 524(a) and 524(e) and the fresh start policy in concluding that the discharge injunction does not bar such a suit. See, e.g. In re Jet Florida Systems, Inc., 883 F.2d 970, 976 (11th Cir.1989) (section 524(e) permits a plaintiff to proceed against the debtor to establish liability as a prerequisite to recover from an insurer); In re Greenway," }, { "docid": "20921921", "title": "", "text": "financial “fresh start” following discharge. In re Jet Florida Sys., 883 F.2d at 972; see Wimmer v. Mann (In re Mann), 58 B.R. 953, 958 (Bankr.W.D.Va.1986). Section 524 further provides, however, that “discharge of a debt of the debt- or does not affect the liability of any other entity on, or the property of any other entity for, such debt.” 11 U.S.C. § 524(e). It is well established that this provision permits a creditor to bring or continue an action directly against the debtor for the purpose of establishing the debtor’s liability when, as here, establishment of that liability is a prerequisite to recovery from another entity. In re Western Real Estate Recovery Fund, 922 F.2d 592, 601 n. 7 (“the fact that the debtor may be involved in the ensuing litigation, even named as a defendant where necessary to enable recovery against a codefendant (such as a liability insurer), does not permit invocation of section 524(a) to preclude a creditor’s post-bankruptcy pursuit of a discharged claim against a third party”); In re Jet Florida Sys., 883 F.2d at 976 (suit against debtor permitted to establish right to recover from debtor’s insurer); Shade v. Fasse (In re Fasse), 40 B.R. 198, 200 (Bankr.D.Colo.1984) (suit against debtor permitted to establish right to recovery from Colorado Real Estate Recovery Fund); see generally 3 R. Babitt, A. Herzog, H. Novikoff & M. Sheinfeld, Collier on Bankruptcy ¶ 524.01 at 524-16 (15th ed. 1990). Logically enough, this exception to section 524(a)’s post-discharge injunction hinges “upon the condition that the debtor not be personally liable in a way that would interfere with the debtor’s fresh start in economic life.” In re Jet Florida Sys., 883 F.2d at 975; see In re Mann, 58 B.R. at 958; In re McGraw, 18 B.R. 140, 143 (Bankr.W.D.Wis.1982) (suit against debtor may not result in collection efforts against debtor or his property). In this case, the Higleys seek to continue their state court action against Walker for the sole purpose of confirming their right to the Fund monies previously paid to them. Both the bankruptcy and district courts denied" }, { "docid": "4389641", "title": "", "text": "cannot be enforced to that extent and can be collaterally attacked in bankruptcy court. It follows that, to the extent the WCAB action leads to collection “as a personal liability of the debtor” on a debt that is excepted from discharge, the § 524(a)(2) discharge injunction does not apply because it does not involve a discharged debt. The district court in Slali reasoned that one “cannot object that the court should protect them from the hardship of paying a debt which the law makes nondischargeable.” Slali, 282 B.R. at 231. We agree. CONCLUSION We hold that the procedurally deficient order on appeal be deemed to be a declaratory judgment that the § 524(a)(2) discharge injunction precludes completion of the WCAB proceeding, that the § 524(a)(2) discharge injunction does not preclude such completion, and that the § 524(a)(2) discharge injunction does not protect a debtor from an action to determine the debtor’s liability on a nondischargeable debt. Accordingly, we REVERSE. . In Beeney, we explained that the discharge injunction does not preclude an action naming the discharged debtor as a party in litigation in a nonbankruptcy forum where it is clear that recovery will be limited to insurance proceeds. The same rationale permits an action at the WCAB for the purposes of collecting from the UEF. It does not matter that the debtor is a nominal defendant, as in Beeney, or whether the litigation is not against the debtor but might result in liability of the debtor to a third party by operation of law. . The subsection provides, in relevant part: (2) the stay of any other act [i.e., other than acts against property of the estate] under subsection (a) of this section continues until the earliest of— (C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, 12, or 13 of this title, the time a discharge is granted or denied. 11 U.S.C. § 362(c)(2). . Rule 9005 provides: Rule 61 F.R. Civ. P. applies in cases under the Code. When appropriate, the court may order" }, { "docid": "23648429", "title": "", "text": "discharge is granted, whichever comes first. Under § 362(a), Wimmer was stayed from proceeding on her Motion for Judgment for damages against the Debtor in state court by the filing of his petition here. Wimmer never filed a motion for relief from the stay pursuant to § 362(d) or (f) in order to reduce her claim to judgment. The automatic stay continued in effect until the Debtor was granted a discharge on September 6, 1984. Upon the granting of a discharge, the automatic stay of § 362 is dissolved and is replaced by the permanent injunction of 11 U.S.C. § 524. In re Aldrich, 9 C.B.C.2d 1073 (Bankr.App. 9th Cir.1982); In re White Motor Credit Corp., 37 B.R. 631, 643 (N.D.Oh.1984); aff'd 761 F.2d 270 (6th Cir.1985). Section 524 outlines the effects of a discharge in Bankruptcy and, in relevant part, provides that: “(a) A discharge in a case under this title— (1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under Section 727, 944, 1141, or 1328 of this Title, whether or not discharge of such debt is waived; (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived;” In general, § 524 protects the debt- or from any subsequent action by a creditor whose claim has been discharged in the Bankruptcy case. Section 524 ensures that a discharge will be completely effective and operate as an injunction against enforcement of a judgment or the commencement or continuation of an action in other courts to collect or recover a debt as a personal liability of the debtor. 3 Collier on Bankruptcy, ¶ 524.01 at 524-4 (15th Ed.1985); In re Sands, 24 B.R. 688 (Bankr.D.R.I.1982). See, also, Campbell v. General Financing Corp. of Virginia, 523 F.Supp. 989 (W.D.Va.1981) (Discharge releases the debtor from any legal" }, { "docid": "13847995", "title": "", "text": "against the commencement or continuation of an action, the employment or process, or an act, to collect, recover or offset such debt as a personal liability of the debtor, whether or not discharge of such debt is waived; (emphasis added). That the prohibition of section 524(a)(2) is limited only to efforts seeking recovery from the Debtor personally, is evident from section 524(e) which specifically excludes from its operation efforts to recover from other entities who might be liable for the discharge debt. “Except as provided in subsection (a)(3) of this section [irrelevant to the instant circumstances], discharge of a debt of the debtor does not effect the liability of any other entity on, or the property of any other entity for, such debt.” 11 U.S.C. § 524(e). What is important to keep in mind is that a discharge in bankruptcy does not extinguish the debt itself but merely releases the debtor from personal liability which, by virtue of section of 524(a)(2) bars its enforcement against him. The debt still exists, however, and can be collected from any other entity that might be liable. It has been said, as regards the effect of section 524(e) on an insurance companies’ liability for the acts of its insured who obtains a discharge in bankruptcy, that the injunction does not affect a personal injury claimant’s efforts to recover from the debt- or’s insurer so long as the insurer covers all defense costs and all potential liability. In re Holtkamp, 669 F.2d 505, 508-09 (7th Cir.1982). The Kansas case of Johnson v. Bondurant, 187 Kan. 637, 359 P.2d 861 (1961), involved facts similar to the case at bar. In that case the injured plaintiff brought a state action to recover injuries sustained as the result of the negligent operation of the debtor’s truck being used on a construction project. While suit was pending, the debtor, who was covered by liability policy, filed for bankruptcy and obtained a discharge. The court, interpreting former section 34 of the Bankruptcy Act said: “It seems only logical to conclude that section 34 of the Bankruptcy Act, above, which provides" }, { "docid": "3825771", "title": "", "text": "for the value of collateral that Watson agreed to relinquish, any judgment ensuing from a breach of that agreement would be outside the scope of the Bankruptcy Code. Section 727 provides that a debtor will be discharged from all debts that arose before the date of the order for relief except nondis-chargeable debts. § 727(b). Section 524 enjoins creditors from attempting to collect from the debtor or the debtor’s assets debts that have been discharged in bankruptcy. Beeney, 142 B.R. at 362. “Courts should readily reopen a closed bankruptcy case to ensure that the essential purposes of the discharge are not undermined.” 3 CollieR on BaNKruptcy, § 524-02 at 524-22 (15th ed. 1995). Section 524(a) states, in pertinent part, that a discharge: (1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727 ... whether or not discharge of such debt is waived; (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived.... 11 U.S.C. § 524 (1988). This case concerns the interplay of §§ 362, 727 and 524. The automatic stay, effective at time of the bankruptcy filing, is a temporary injunction against most actions by creditors. See In re Bialac, 712 F.2d 426, 431 (9th Cir.1983); In re Aldrich, 34 B.R. 776, 779 (9th Cir. BAP 1983). The automatic stay can be dissolved by order of the court, as in this ease, or it is dissolved upon the earliest of the closing of the case, the dismissal of the case or at the time a discharge is granted or denied. § 362(e); Watson, 78 B.R. at 235. If a discharge is granted, the automatic stay is replaced by the permanent injunction of § 524. Section 524 enjoins creditors from attempting to collect from the debtor or the debtor’s assets debts that have" }, { "docid": "8562278", "title": "", "text": "asserts that she has lost at least three hours of work and earns $21.93 per hour. Debtor testified that he is a trucker and that he earns $.13 per mile. Because of these proceedings, he has been required to refuse work and has lost wages. CONCLUSIONS OF LAW Section 524(a) prohibits any attempt to hold the debtor liable on discharged debt. It provides, in relevant part, that a discharge in bankruptcy: (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not the discharge of such debt is waived. The burden rests with the movant to show by clear and convincing evidence that the offending creditor had knowledge of the discharge and willfully violated it by pursuing collection activities. In re Goodfellow, 298 B.R. 358, 362 (Bankr.N.D.Iowa 2003). Section 524 makes clear that a bankruptcy discharge operates as a continuing stay after the close of the case, enjoining only acts to recover or offset discharged debts “as a personal liability of the debtor.” In re Northeast Glass, Inc., 112 B.R. 475, 477 (Bankr.D.Mass.1990); 11 U.S.C. § 524(a)(2). It “does not affect the liability of any other entity on, or the property of any other entity for, such debt.” Northeast Glass, 112 B.R. at 478; 11 U.S.C. § 524(e). “The discharge in bankruptcy, along with the coextensive permanent injunction and fresh start, are exclusive to the debtor, and do not otherwise affect the enforcement of any underlying debt, or any nondebtor liability thereon.” In re Jason Pharmaceuticals, Inc., 224 B.R. 315, 321 (Bkrtcy.D.Md. 1998). Just as the discharge is personal to the debtor, so to is the permanent injunction arising from § 524(a). Id. at 322. What is important to keep in mind is that a discharge in bankruptcy does not extinguish the debt itself but merely releases the debtor from personal liability which, by virtue of section of 524(a)(2) bars its enforcement against him. The debt still exists, however, and can be collected" }, { "docid": "16221960", "title": "", "text": "argues that it seeks a permanent injunction against the enforcement of a judgment — a remedy distinguishable from discharge. 11 U.S.C. § 524(a)(2), however, describes the effect of a discharge “as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived.” We find American’s semantic distinction between a permanent injunction and a discharge unpersuasive. A discharge under section 524(a)(2) does not void ab initio a liability. Rather, section 524 constructs a legal bar to its recovery. A discharge is in effect a special type of permanent injunction. American seeks the same. The permanent injunction requested by American falls squarely within the definition of a discharge under section 524(a)(2). American requests “an injunction against ... an action ... to collect ... [a] debt.” 11 U.S.C. § 524(a)(2); see In re Dickinson, 24 B.R. 547, 550 (Bankr.S.D.Cal.1982) (“The granting of a discharge operates as a permanent injunction against any attempt to collect or recover on a debt....”) (emphasis added); Zaretsky, Co-Debtor Stays in Chapter 11 Bankruptcy, 73 Cornell L.Rev. 213, 231 (1988) (“[A]ny co-debtor stay [under section 105] is, by its nature, temporary. Section 524(e) ... states that discharge of a debtor does not affect the liability of third parties on an obligation. Thus, the stay will expire either on its own terms or upon the close of the case, and the creditor may proceed against the co-debtor.”) (footnote omitted); see also In re Elsinore Shore Associates, 91 B.R. 238, 247-56 (Bankr.D.N.J.1988) (proposed plan not confirmable because it called for discharge of nondebtors; section 105 does not empower court to discharge nondebtors via injunction). We therefore conclude that the specific provisions of section 524 displace the court’s equitable powers under section 105 to order the permanent relief sought by American. Even if we adopted In re A.H. Robins Co. (Menard-Sanford v. Mabey), 880 F.2d 694 (4th Cir.1989) (Mabey), it would not dictate a different result. There, A.H. Robins, confronted with an" }, { "docid": "20921920", "title": "", "text": "on this review, we reverse the district court’s decision on the injunction issue, but affirm its decision regarding the Higleys’ untimely attempt to challenge the discharge of their claim. Section 524(a)(2) of the Bankruptcy Code provides: (a) A discharge in a case under this title— (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived; 11 U.S.C. § 524(a)(2). Thus, this section enjoins the Higleys from commencing or continuing any action or other process to hold Walker personally liable on their discharged claim against him. See Landsing Diversified Properties-II v. First Nat’l Bank & Trust Co. (In re Western Real Estate Fund, Inc.), 922 F.2d 592, 598 (10th Cir.1990); Owaski v. Jet Florida Sys., Inc. (In re Jet Florida Sys., Inc.), 883 F.2d 970, 973 (11th Cir.1989). The intent of this post-discharge injunction is to protect debtors like Walker in their financial “fresh start” following discharge. In re Jet Florida Sys., 883 F.2d at 972; see Wimmer v. Mann (In re Mann), 58 B.R. 953, 958 (Bankr.W.D.Va.1986). Section 524 further provides, however, that “discharge of a debt of the debt- or does not affect the liability of any other entity on, or the property of any other entity for, such debt.” 11 U.S.C. § 524(e). It is well established that this provision permits a creditor to bring or continue an action directly against the debtor for the purpose of establishing the debtor’s liability when, as here, establishment of that liability is a prerequisite to recovery from another entity. In re Western Real Estate Recovery Fund, 922 F.2d 592, 601 n. 7 (“the fact that the debtor may be involved in the ensuing litigation, even named as a defendant where necessary to enable recovery against a codefendant (such as a liability insurer), does not permit invocation of section 524(a) to preclude a creditor’s post-bankruptcy pursuit of a discharged claim against a third party”); In re Jet Florida" }, { "docid": "15939821", "title": "", "text": "$1,200. 11 U.S.C. § 362(a)(6) and § 362(h) A bankruptcy petition filed under § 301 of the Code imposes the automatic stay pursuant to § 362. All voluntary cases are included in § 301. The automatic stay under § 362 prohibits any entity from taking action “to collect, assess, or recover a claim against the debtor that arose before the commencement of a case.” 11 U.S.C. § 362(a)(6). The scope of the automatic stay is extremely broad. In re Knaus, 889 F.2d 773, 774 (8th Cir.1989). By the passage of § 362, Congress intended the automatic stay to stop “all collection efforts, all harassment, and all foreclosure actions” and “prevent creditors from attempting in any way to collect a prepetition debt.” H.R. 595, 95th Cong., 1st Sess. pp. 340-42 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5963, 6296-6299; In re Grau, 172 B.R. 686, 690 (Bankr.S.D.Fla. 1994). Section 362(h) addresses sanctions for the violation of the automatic stay. It provides that: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h). A violation of the stay is “willful” where the violator’s conduct is deliberate and with knowledge of the bankruptcy filing. In re Dencklau, 158 B.R. 796, 800 (Bankr.N.D.Iowa 1993). In imposing actual damages, the trial court has discretion to fashion the punishment to fit the circumstances. Hubbard v. Fleet Mortg. Co., 810 F.2d 778, 782 (8th Cir. 1987) (citing United States v. United Mine Workers, 330 U.S. 258, 303, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). 11 U.S.C. § 524(a) Section 524(a) states, in pertinent part: (a) A discharge in a case under this title— (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived. 11 U.S.C. § 524(a). Section 524(a)(2) replaces the automatic stay of § 362 with a" }, { "docid": "15939822", "title": "", "text": "shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h). A violation of the stay is “willful” where the violator’s conduct is deliberate and with knowledge of the bankruptcy filing. In re Dencklau, 158 B.R. 796, 800 (Bankr.N.D.Iowa 1993). In imposing actual damages, the trial court has discretion to fashion the punishment to fit the circumstances. Hubbard v. Fleet Mortg. Co., 810 F.2d 778, 782 (8th Cir. 1987) (citing United States v. United Mine Workers, 330 U.S. 258, 303, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). 11 U.S.C. § 524(a) Section 524(a) states, in pertinent part: (a) A discharge in a case under this title— (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived. 11 U.S.C. § 524(a). Section 524(a)(2) replaces the automatic stay of § 362 with a permanent injunction against enforcement of all discharged debts after entry of the discharge. In re Waswiek, 212 B.R. 350, 352 (Bankr. D.N.D.1997). Unlike § 362(h), which authorizes an individual injured by a willful violation of the automatic stay to recover actual damages, attorney fees, and where appropriate, punitive damages, § 524(a) does not expressly mention such awards. In re Walker, 180 B.R. 834, 847 (Bankr. W.D.La.1995). Willful violation of the § 524(a)(2) injunction, however, will warrant a finding of civil contempt. Id.; Was- wick, 212 B.R. at 352. The burden rests with the movant to show by clear and convincing evidence that the offending creditor had knowledge of the discharge and willfully violated it by pursuing collection activities. Waswick, 212 B.R. at 352. ANALYSIS Discover Financial Services, Inc. has been properly served with Debt- or’s Motion for Sanctions. It has not filed an appearance or made contact with Debt- or’s counsel concerning this action. There have been numerous contacts made between Discover Financial Services, Inc. and Debtor by letters and telephone calls. While the letters" }, { "docid": "4786284", "title": "", "text": "Woodhaven brought suit against the Debtors in state court for breach of contract, allegedly seeking to collect assessments for the period after the filing of the Chapter 7 case and attorney’s fees, in the sum of $1,379.00. On October 21,1987, Woodhaven obtained a default judgment against the Debtors for said amount. On December 31, 1987, the Debtors filed a “Petition for Certification of Contempt” against Woodhaven. The Debtors ask the Court to hold Woodhaven in contempt for obtaining the judgment in violation of the automatic stay. Discussion As a preliminary matter, the Court must clarify the procedural posture of this case. The Debtors cite the automatic stay as authority for their petition. See, 11 U.S.C. § 362. The automatic stay bars creditors from attempting to collect prepetition debts, in order to give the debtor a more effective “fresh start.” In re Smurzynski, 72 B.R. 368 (N.D.Ill.1987). But the protection afforded by the automatic stay is only temporary and expires: (1) at the time the case is closed, § 362(c)(2)(A); (2) at the time the case is dismissed, § 362(c)(2)(B), or (3) upon the entry or denial of a discharge, § 362(c)(2)(C). In this case, the state court suit was commenced after the Debtors’ discharge. Thus, the automatic stay was inapplicable. The Debtors’ motion, however, does allege a violation of the permanent injunction of 11 U.S.C. § 524(a). That section prohibits creditors holding discharged debts from commencing an action to collect that debt. Accordingly, the Court will analyze this proceeding pursuant to § 524(a) of the Code, rather than § 362. For purposes of this case, the permanent injunction of § 524(a) prohibits creditors of these Debtors from attempting to collect on or to assert personal liability for any debt discharged pursuant to § 727 of the Bankruptcy Code. Subparagraph (b) of § 727 provides in pertinent part: Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter, and any liability on a claim that" } ]

[ { "docid": "22600760", "title": "", "text": "III. Analysis Because the BIA affirmed the IJ’s decision without opinion, “we review the IJ’s decision, which constitutes the final agency determination.” Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005). We “review for substantial evidence the BIA’s non-discretionary factual determinations, including the determination of continuous presence.” Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir.2004). “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.’ ” Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir.2003) (quoting 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)). On this record, the IJ’s conclusion that petitioner is ineligible for cancellation of removal because he received administrative voluntary departure is not supported by substantial evidence. We have held that an alien who departs the United States pursuant to the formal process known as administrative voluntary departure interrupts his physical presence in the United States so that, should the alien return, he must begin anew the process of accumulating physical presence for immigration purposes. Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir.2003) (per curiam). However, not all departures after contact with immigration officials constitute administrative voluntary departures that interrupt an alien’s continuous physical presence in the United States. As we have recently recognized, when an alien is simply “turned around at the border” by immigration officials, the alien’s departure from the United States does not serve to interrupt the alien’s continuous physical presence. See Tapia v. Gonzales, 430 F.3d 997 (9th Cir.2005). Here, one can only speculate as to whether petitioner received administrative voluntary departure. No voluntary departure form was produced, and the only testimony that was presented on this issue was petitioner’s own confusing testimony. Specifically, when asked whether he had ever received voluntary departure, petitioner answered: A. I think once in 1996, but I got no option. Q. You got what? A. No option when I was" } ]

[ { "docid": "22387098", "title": "", "text": "establish adequate continuous physical presence. The IJ applied In re Romalez-Alcaide, 23 I & N Dec. 423 (BIA 2002) (en banc), to determine that Serrano’s continuous physical presence was interrupted when Serrano was compelled — as the IJ concluded was the case, based on Serrano’s testimony — to depart in 1990 under the threat of removal proceedings. The IJ noted that Serrano had been given the opportunity to go before an IJ at that time but had chosen to leave voluntarily instead. Because of this alleged administrative voluntary departure, Serrano fell three years short of the required ten years’ continuous physical presence. Though denying Serrano’s application for cancellation of removal, the IJ granted Serrano voluntary departure. Serrano appealed to the BIA, which affirmed the IJ without opinion. Serrano in his petition for review asks us to review the denial of his application. II Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), we lack jurisdiction to review any discretionary judgment regarding certain components of the granting of relief for cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B). However, we have jurisdiction to review whether an alien has met the “ten years of continuous physical presence requirement because this is an objective, factual inquiry.” Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir.2003) (internal quotation marks omitted). We must accord Chevron deference to the BIA’s statutory interpretations of the Immigration and Naturalization Act (“INA”). INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We review for substantial evidence the agency’s decision concerning an applicant’s establishment of ten years of continuous physical presence in the United States. See Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1115 (9th Cir.2004), amended by 381 F.3d 847 (9th Cir.2004). Here, because the BIA affirmed the IJ’s decision without opinion, the IJ’s decision constitutes the final agency action for purposes of our review. See 8 C.F.R. § 1003.1(e)(4) (ii); see also Tapia v. Gonzales, 430 F.3d 997, 999" }, { "docid": "22202319", "title": "", "text": "aliens lucky enough to have a border official turn them around without placing them in the expedited removal process. We can respond to such anticipated criticism only by noting that a line must be drawn somewhere. It is within Congress’s discretion to draw the line between denials of reentry that are memorialized and executed pursuant to an expedited removal order and those that are not. And that is what we conclude Congress has done. Accordingly, we hold that an expedited removal order interrupts an alien’s continuous physical presence in this country for purposes of cancellation of removal relief. PETITION DENIED. . We \"may consider the predicate legal question whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for [cancellation of removal] relief.” Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir.2005). . The term \"cancellation of removal” has replaced the term \"suspension of deportation.” See Alcaraz v. INS, 384 F.3d 1150, 1152-53 (9th Cir.2004). . See Tapia, 430 F.3d at 1000-01 (reviewing history of continuous physical presence requirement). Other requirements also apply. See 8 U.S.C. § 1229b(b)(l). However, they are not relevant in this case. . 8 U.S.C. § 1229b(d)(1); Ibarra-Flores v. Gonzales, 439 F.3d 614, 617 & n. 1 (9th Cir.2006) (describing history of provision). . See Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974 (9th Cir.2003) (per curiam). . Tapia, 430 F.3d at 1000-01; 8 U.S.C. § 1229b(d)(2) . Tapia, 430 F.3d at 998, 1003. . Id. . Id. at 1003-04 (holding that the existence of computer records listing \"information about the rejections” at the border and containing the alien’s fingerprints and photograph did not suffice to interrupt an alien’s continuous physical presence). . 8 U.S.C. § 1182(a)(9)(A) (providing a five-year bar to readmission for aliens removed after both expedited and formal proceedings). . See Vasquez-Lopez, 343 F.3d at 972; Tapia, 430 F.3d at 1002. . 8 U.S.C. § 1182(a)(9)(B). . See Tapia, 430 F.3d at 1002; see also Vasquez-Lopez, 343 F.3d at 972 (noting that the BIA properly held that, much like formal removals, voluntary departures ‘'sever[] the alien's" }, { "docid": "22698196", "title": "", "text": "here before the brief absence. Some absences do interrupt an alien’s continuous physical presence, no matter how brief. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir.2003), amending 315 F.3d 1201 (9th Cir.2003), we held that an alien who left the United States pursuant to a formal process known as administrative voluntary departure could not continue to accrue presence in the United States from an earlier date. In so holding, we explicitly deferred to In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (en banc), in which the BIA concluded that an administrative voluntary departure interrupted an alien’s continuous physical presence. But what if the alien departed the country on his own to attend to a family matter and was stopped and turned away at the border by immigration officials when he initially attempted to return to this country a month later, as in the case before us? Does such a rejection have the same effect as an administrative voluntary departure, terminating the accrual of physical presence in the United States for the purpose of eligibility for cancellation of removal? The IJ concluded that it does, reasoning that this case was also controlled by Ro-malez-Alcaide. The BIA affirmed without opinion. We disagree, however, and conclude that being turned away at the border by immigration officials does not have the same effect as an administrative voluntary departure and does not itself interrupt the accrual of an alien’s continuous physical presence. Because that was the reason Tapia was deemed ineligible for cancellation of removal, we grant his petition for review and remand for further proceedings. 1. BACKGROUND Tapia testified that he has been living in the United States since January of 1991 and has worked for the same employer since his arrival, beginning as a general field hand and progressing to a more senior full-time position at one of the company’s strawberry nurseries. He earns approximately $38,000 to $40,000 a year, and his employer provides housing for his family. In February 1997 Tapia married his wife, who at that time was also present here illegally. Ten months later they" }, { "docid": "22698201", "title": "", "text": "IJ’s decision as the final agency action. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004). We review the IJ’s determination of purely legal questions de novo. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). The only two circuits that have compared the effects of an administrative voluntary departure and a turnaround at the border on the continuity of an alien’s physical presence have concluded that the two means of departure are substantively and procedurally distinguishable and that only the former interrupts the continuity of an alien’s physical presence. See Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 907 (8th Cir.2005) (holding that an alien who had been present in the United States since 1984 and returned to Mexico for two weeks in 1990 to attend to his ailing grandfather did not break the continuity of his presence by simply being turned around at the border upon his attempted reentry); Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th Cir.2004) (holding that an alien who had been present in the United States since 1986 and went to Mexico for approximately two weeks in 1999 to care for her gravely ill mother did not break her continuous physical presence when she was turned around at the border upon attempting to reenter the United States). In a decision announced after it affirmed without opinion the IJ’s decision in this case, the BIA has likewise concluded that a turnaround at the border by itself does not interrupt an alien’s physical presence. In re Avilez-Nava, 23 I. & N. Dec. 799, 807(BIA 2005) (en banc). In reaching its conclusion in that case the BIA cited with approval and stated that it was guided by the Seventh and Eighth Circuit decisions noted above, Morales-Morales and Reyes-Vasquez. Id. at 804-05. Upon review of the relevant statutory provisions, we agree that being turned away by immigration officials at the border while attempting to reenter this county does not itself have the effect of terminating an alien’s accrual of physical presence in the United States in the same way that removal or administrative voluntary departure does. Congress initially established the" }, { "docid": "22387100", "title": "", "text": "(9th Cir.2005). In reviewing for substantial evidence, we follow this rule: “To obtain reversal under this standard, the petitioner must demonstrate that the evidence not only supports that conclusion, but compels it.” Lopez-Alvarado, 371 F.3d at 1115 (internal quotation and citation omitted). III In order to be eligible for cancellation of removal, an applicant must first have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.... ” 8 U.S.C. § 1229b(b)(l)(A). Service with an NTA halts an alien’s accrual of continuous physical presence. 8 U.S.C. §§ 1229b(d)(l). Because Serrano was served with the present NTA in August of 1997, he would need to establish continuous physical presence in the United States since August of 1987 to meet the requirements of section 1229b(b)(l)(A). If Serrano’s brief trip to Mexico in the intervening period interrupted his accrual of presence, then Serrano is statutorily ineligible for cancellation of removal. A regulatory section governing the interruption of continuous physical presence provides that “a period of continuous physical presence is terminated whenever ... the alien has voluntarily departed under the threat of deportation.... ” 8 C.F.R. § 240.64(b)(3) (2003). In In re Romalez-Alcaide, 23 I & N Dec. 423, 429 (BIA 2002) (en banc), the BIA held, in accordance with this regulation, that an alien who voluntarily departs under threat of deportation breaks his or her continuous physical presence period for cancellation of removal. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 973 (9th Cir.2003) (per curiam), we upheld the BIA’s interpretation in Romalez, stressing that to declare otherwise would be inconsistent with the very purpose of removal. Serrano does not contest this general proposition but rather its applicability to him, arguing that his return to Mexico should not interrupt his continuous physical presence, Romalez notwithstanding. Serrano cites to an Eighth Circuit case, Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir.2005), in which our sister circuit stated, “before it may be found that a presence-breaking voluntary departure occurred, the record must contain some evidence that the alien was informed of and" }, { "docid": "22202318", "title": "", "text": "we hold that an expedited removal order interrupts an alien’s continuous physical presence in this country for the purpose of cancellation of removal relief. We acknowledge that many differences between expedited and formal removals exist. In addition, many similarities between the expedited removal process and simple turnarounds at the border exist. Those factors do not outweigh, however, the fact that Congress clearly intended formal and expedited removals — but not mere turnarounds — to sever an alien’s ties with this country. Our decision comports with previous decisions in which we, and the BIA, assumed that expedited removal orders interrupt continuous physical presence. However, it arguably contradicts — or at least limits — dicta in Tapia. The Tapia court stated, for example, that if it were to hold that being turned around at the border “interrupted an alien’s physical presence, [it] would arbitrarily reward those returning aliens who were particularly adept or lucky in their ability to cross the border without getting stopped.” Extending that logic, our decision today might be seen as “arbitrarily reward[ing]” those aliens lucky enough to have a border official turn them around without placing them in the expedited removal process. We can respond to such anticipated criticism only by noting that a line must be drawn somewhere. It is within Congress’s discretion to draw the line between denials of reentry that are memorialized and executed pursuant to an expedited removal order and those that are not. And that is what we conclude Congress has done. Accordingly, we hold that an expedited removal order interrupts an alien’s continuous physical presence in this country for purposes of cancellation of removal relief. PETITION DENIED. . We \"may consider the predicate legal question whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for [cancellation of removal] relief.” Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir.2005). . The term \"cancellation of removal” has replaced the term \"suspension of deportation.” See Alcaraz v. INS, 384 F.3d 1150, 1152-53 (9th Cir.2004). . See Tapia, 430 F.3d at 1000-01 (reviewing history of continuous physical" }, { "docid": "22387103", "title": "", "text": "evidence did not support the conclusion that the petitioner gave knowing and voluntary consent. In this case, Serrano’s own testimony establishes that he was given a choice between deportation proceedings and leaving voluntarily, and that he chose the latter. He alleges no misrepresentation by immigration officials, nor any other circumstances to indicate that his rejection of the offer to be heard by an IJ constituted anything other than a knowing and voluntary agreement to depart in lieu of removal proceedings. Serrano’s testimony is substantial evidence supporting the conclusion that Serrano knowingly and voluntarily consented to such voluntary departure. By contrast in Ibarra-Flores, 439 F.3d at 620, the petitioner gave plausible testimony that he did not knowingly and voluntarily accept administrative voluntary departure because of the misrepresentations of immigration officers. Based on this testimony, we concluded that substantial evidence did not support the IJ’s determination that the petitioner’s decision to accept voluntary departure was knowing and voluntary. Id. at 619. See also Tapia v. Gonzales, 430 F.3d 997, 1002 (9th Cir.2005) (holding that petitioner — who was merely turned away at the border when trying to reenter the United States after a brief departure, and who did not depart pursuant to a formalized process resulting in an agreement to depart and not to return unless in accordance with the legal entry process — did not interrupt his accrual of continuous physical presence). We hold here that Serrano’s testimony regarding his acceptance of the opportunity to depart from the United States voluntarily, after having been apprehended in a workplace raid, combined with his rejection of an opportunity to go before an IJ, constitutes substantial evidence of a knowing and voluntary consent to administrative voluntary departure in lieu of removal proceedings. “[I]f voluntary departure is accepted in lieu of being placed in deportation or removal proceedings, the alien agrees to relinquish the right to present a claim for relief that might otherwise allow the alien to stay in the United States.” Ibarra-Flores, 439 F.3d at 620. Because the record contains substantial evidence that immigration officials returned Serrano to Mexico in 1990 under circumstances" }, { "docid": "22698207", "title": "", "text": "requirement and when the accrual of time is terminated, we must make that decision by interpreting the statute in a way consistent with Congress’s intent. See United States v. Buckland, 289 F.3d 558, 565 (9th Cir.2002) (en banc) (“Where the language is not dispositive, we look to the congressional intent revealed in the history and purposes of the statutory scheme.”) (internal quotation omitted). In Vasquez-Lopez we followed the BIA’s reasoning in Romalez-Alcaide that because an order of removal is intended to end an alien’s physical presence and because an administrative voluntary departure is in lieu of removal proceedings and the entry of an order of removal, “it followed that administrative voluntary departures should likewise be seen as severing the alien’s physical tie to the United States.” Vasquez-Lopez, 343 F.3d at 972. The Vasquez-Lopez decision also noted that the BIA in Romalez-Alcaide “likened the proceedings” under the statute governing administrative voluntary departure to a “ ‘plea bargain,’ ” and then quoted the BIA’s decision to explain its reasoning: The alien leaves with the knowledge that he does so in lieu of being placed in proceedings. The clear objective of an enforced departure is to remove an illegal alien from the United States. There is no legitimate expectation by either of the parties that an alien could illegally reenter and resume a period of continuous physical presence. 343 F.3d at 973(quoting Romalez-Alcaide, 23 I. & N. Dec. at 429). Tapia’s situation is distinguishable. Unlike the alien in Vasquez-Lopez, Tapia did not depart pursuant to a formalized process that resulted in an agreement “under which [he] agreed to depart and not to return other than in accordance with the entry process applicable to all aliens.” 343 F.3d at 974. Vasquez-Lopez could not resume his prior residence in the country without violating the agreement he signed with the government. 8 C.F.R. § 240.25(c). Tapia entered into no such agreement. That makes a critical difference. See Reyes-Vasquez, 395 F.3d at 907-08(observing that those cases in which a finding of a break in continuous presence has been upheld, the threat of deportation was clearly expressed and" }, { "docid": "22698195", "title": "", "text": "CLIFTON, Circuit Judge: Jose de Jesus Tapia petitions for review of a decision by the Board of Immigration Appeals (“BIA”) affirming without opinion the decision by an immigration judge (“IJ”) denying his petition for cancellation of removal. To be eligible for cancellation of removal, a form of relief which permits an alien otherwise subject to being expelled from the United States to remain in this country, the alien must prove, among other things, that he or she has been physically present in the United States for a continuous period of at least ten years. A short departure from the United States, such as a brief return to the alien’s native country for family reasons, does not necessarily interrupt the accrual of an alien’s period of physical presence in the United States, pursuant to an exception for brief absences provided in 8 U.S.C. § 1229b(d)(2). An alien who has briefly departed the United States for such a reason can still satisfy the ten-year presence prerequisite to qualify for cancellation of removal by including the time spent here before the brief absence. Some absences do interrupt an alien’s continuous physical presence, no matter how brief. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir.2003), amending 315 F.3d 1201 (9th Cir.2003), we held that an alien who left the United States pursuant to a formal process known as administrative voluntary departure could not continue to accrue presence in the United States from an earlier date. In so holding, we explicitly deferred to In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (en banc), in which the BIA concluded that an administrative voluntary departure interrupted an alien’s continuous physical presence. But what if the alien departed the country on his own to attend to a family matter and was stopped and turned away at the border by immigration officials when he initially attempted to return to this country a month later, as in the case before us? Does such a rejection have the same effect as an administrative voluntary departure, terminating the accrual of physical presence in the United States for" }, { "docid": "5424284", "title": "", "text": "I. & N. Dec. 423 (2002)). In this case, it is clear that Reyes-Vasquez was not out of the country more than 90 days, as he returned to Mexico for only about two weeks to visit his ailing grandfather. The principal question we must resolve, therefore, is whether Reyes-Vasquez’s experience at the border in 1990 constituted voluntary departure “under threat of deportation” so as to legally break his continuous period of physical presence in the United States. We conclude that the record is insufficient to establish that such a voluntary departure occurred. As indicated above, voluntary departure under threat of deportation is the form of departure that breaks continual presence. See Palomino, 354 F.3d at 944; Morales-Morales, 384 F.3d at 426. That language implies that there is an expressed and understood threat of deportation. When an alien is legally permitted to depart voluntarily, he should “leave[ ] with the knowledge that he does so in lieu of being placed in proceedings” and therefore has no legitimate expectation that he may reenter and resume continuous presence. In re Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (2002) (en banc). “There is a significant difference between ... the Border Patrol simply turning [the alien] back at the border and voluntary departure under threat of removal proceedings.” Morales-Morales, 384 F.3d at 427. In cases in which a finding of a break in continuous presence has been upheld, the threat of deportation was expressed and understood by the alien. See Palomino, 354 F.3d at 943 (INS officials “gave [Palomino] the option of voluntarily departing or facing formal administrative deportation proceedings”); Mireles-Valdez, 349 F.3d at 214 (Míreles-Valdez “agreed to accept an administrative voluntary departure; and was returned to Mexico without having proceedings brought against him”); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 969 (9th Cir.2003) (per curiam) (Vasquez-Lopez was arrested, admitted deportability, requested voluntary departure, and was escorted to Mexico by the Border Patrol), amending 315 F.3d 1201 (9th Cir.2003). The alien is unlikely to have understood the threat and its consequences, however, if the record fails to establish that any communication about the possibility of" }, { "docid": "4045802", "title": "", "text": "step two); see also Vasquez-Lopez, 343 F.3d at 970 (“We must also be mindful that ‘judicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations.’ ” (quoting Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439)). Second, an expedited removal order is clearly intended to sever an alien’s ties with this country for the five-year period during which it prohibits an alien from reentering the United States. See § 1182(a)(9)(A)(i); Juarez-Ramos, 485 F.3d at 511. Accordingly, it is not unreasonable to conclude that an alien’s departure from the United States following such an order constitutes an interruption in that alien’s continuous physical presence in the United States. In fact, a contrary rule would seem inconsistent with the congressional intent underlying the INA. See Juarez-Ramos, 485 F.3d at 511 (holding that expedited removal interrupts continuous physical presence “because, in at least one important way, expedited and formal removals are similar. Both carry with them an explicit statutory bar to readmission for a period of five years. This statutory bar reflects a congressional intent to sever an alien’s ties to this country.” (internal cita: tions omitted)); Tapia, 430 F.3d at 1002 (in distinguishing a border turnaround from a voluntary departure under the threat of removal, noting that, “[t]o permit an alien who was removed or left pursuant to an administrative voluntary departure to continue to accrue physical presence would thwart Congress’s clear intent that such an alien be inadmissible for years following the date of his departure”). We are aware that upholding the BIA’s decision “might be seen as arbitrarily rewarding those aliens lucky enough to have a border official turn them around without placing them in the expedited removal process.” See Juarez-Ramos, 485 F.3d at 512 (internal marks omitted). However, any construction of § 1229b will undoubtedly result in some seemingly arbitrary or unfair results, and “a line must be drawn somewhere.” See id. The BIA was required to interpret the impact of expedited removal, which precludes an alien from returning to the country for five" }, { "docid": "22387101", "title": "", "text": "of continuous physical presence is terminated whenever ... the alien has voluntarily departed under the threat of deportation.... ” 8 C.F.R. § 240.64(b)(3) (2003). In In re Romalez-Alcaide, 23 I & N Dec. 423, 429 (BIA 2002) (en banc), the BIA held, in accordance with this regulation, that an alien who voluntarily departs under threat of deportation breaks his or her continuous physical presence period for cancellation of removal. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 973 (9th Cir.2003) (per curiam), we upheld the BIA’s interpretation in Romalez, stressing that to declare otherwise would be inconsistent with the very purpose of removal. Serrano does not contest this general proposition but rather its applicability to him, arguing that his return to Mexico should not interrupt his continuous physical presence, Romalez notwithstanding. Serrano cites to an Eighth Circuit case, Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir.2005), in which our sister circuit stated, “before it may be found that a presence-breaking voluntary departure occurred, the record must contain some evidence that the alien was informed of and accepted its terms.” Id. at 908. Since the filing of petitioners’ initial brief, we have also adopted this principle. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 619 (9th Cir.2006) (holding that an expressed and understood threat of deportation is requisite to presence-breaking voluntary departure). Serrano argues that he was not advised of his privileges and rights and did not knowingly agree to administrative voluntary departure in 1990, that he did not have the opportunity to be heard by an immigration judge, and that he therefore did not interrupt the accrual of continuous physical presence. Yet Serrano’s account of the circumstances of his departure persuasively suggests otherwise. Serrano testified to the IJ that he was caught in a work raid conducted by the then-INS, and, crucially, admitted twice that he had been given the opportunity to go before an immigration court and had explicitly rejected it and signed a voluntary departure document instead, suggesting that he preferred removal because it was “faster.” Serrano’s case is thus critically different from cases where we have found that substantial" }, { "docid": "5424285", "title": "", "text": "In re Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (2002) (en banc). “There is a significant difference between ... the Border Patrol simply turning [the alien] back at the border and voluntary departure under threat of removal proceedings.” Morales-Morales, 384 F.3d at 427. In cases in which a finding of a break in continuous presence has been upheld, the threat of deportation was expressed and understood by the alien. See Palomino, 354 F.3d at 943 (INS officials “gave [Palomino] the option of voluntarily departing or facing formal administrative deportation proceedings”); Mireles-Valdez, 349 F.3d at 214 (Míreles-Valdez “agreed to accept an administrative voluntary departure; and was returned to Mexico without having proceedings brought against him”); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 969 (9th Cir.2003) (per curiam) (Vasquez-Lopez was arrested, admitted deportability, requested voluntary departure, and was escorted to Mexico by the Border Patrol), amending 315 F.3d 1201 (9th Cir.2003). The alien is unlikely to have understood the threat and its consequences, however, if the record fails to establish that any communication about the possibility of deportation occurred and the alien credibly testifies that he was simply released back over the border. See Morales-Morales, 384 F.3d at 427 (noting Morales-Morales’s testimony that the Border Patrol “just took me, threw me around, and turned me back”). In 1990, the U.S. Border Patrol had the authority to grant voluntary departure to an alien “[w]ho is a native of a foreign contiguous territory” such as Mexico. See 8 G.F.R. § 242.5 (1990). Voluntary departures, which are formal and legally binding grants, were commonly documented in an alien’s file, see Deportation Officer’s Handbook, Immigration and Naturalization Ser vice (Handbook), Ch. 1, ¶ 1-4 (1986), even though extensive docket control was not necessary for cases involving immediate departure. Id. at • ¶ 1-2 (noting that I-274/274A and “satisfactory departure” cases do not require docket control). The Handbook stated: When an alien has been granted voluntary departure and removed at Government expense, care should be taken to leave written evidence in the alien’s file indicating the date of removal and the cost of the removal. Form I-274/274A" }, { "docid": "22698200", "title": "", "text": "in both situations the alien made a choice to depart the country in lieu of removal proceedings. As a result, the IJ held that Tapia did not satisfy the ten-year requirement and was not eligible for cancellation of removal. The IJ denied Tapia’s petition and granted him voluntary departure in lieu of removal. The BIA affirmed the IJ’s decision without opinion. II. JURISDICTION While 8 U.S.C. § 1252(a)(2)(B) precludes a court’s direct review of the Attorney General’s discretionary decisions, the court may consider the predicate legal question of whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for relief. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889-90 (9th Cir.2003). The determination of whether an alien has satisfied the continuous physical presence requirement is a factual inquiry guided by legal standards. The decision is non-discretionary, so we retain appellate jurisdiction over the issue. See Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997). III. DISCUSSION Where the BIA affirms an IJ’s order without opinion, we review the IJ’s decision as the final agency action. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004). We review the IJ’s determination of purely legal questions de novo. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). The only two circuits that have compared the effects of an administrative voluntary departure and a turnaround at the border on the continuity of an alien’s physical presence have concluded that the two means of departure are substantively and procedurally distinguishable and that only the former interrupts the continuity of an alien’s physical presence. See Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 907 (8th Cir.2005) (holding that an alien who had been present in the United States since 1984 and returned to Mexico for two weeks in 1990 to attend to his ailing grandfather did not break the continuity of his presence by simply being turned around at the border upon his attempted reentry); Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th Cir.2004) (holding that an alien who had been present in the United States since 1986 and went to" }, { "docid": "22202320", "title": "", "text": "presence requirement). Other requirements also apply. See 8 U.S.C. § 1229b(b)(l). However, they are not relevant in this case. . 8 U.S.C. § 1229b(d)(1); Ibarra-Flores v. Gonzales, 439 F.3d 614, 617 & n. 1 (9th Cir.2006) (describing history of provision). . See Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974 (9th Cir.2003) (per curiam). . Tapia, 430 F.3d at 1000-01; 8 U.S.C. § 1229b(d)(2) . Tapia, 430 F.3d at 998, 1003. . Id. . Id. at 1003-04 (holding that the existence of computer records listing \"information about the rejections” at the border and containing the alien’s fingerprints and photograph did not suffice to interrupt an alien’s continuous physical presence). . 8 U.S.C. § 1182(a)(9)(A) (providing a five-year bar to readmission for aliens removed after both expedited and formal proceedings). . See Vasquez-Lopez, 343 F.3d at 972; Tapia, 430 F.3d at 1002. . 8 U.S.C. § 1182(a)(9)(B). . See Tapia, 430 F.3d at 1002; see also Vasquez-Lopez, 343 F.3d at 972 (noting that the BIA properly held that, much like formal removals, voluntary departures ‘'sever[] the alien's physical tie to the United States”). . Tapia, 430 F.3d at 1002. . 8 U.S.C. § 1182(a)(9)(A). . Aliens are afforded very little process in expedited removals, in contrast to formal removal proceedings. Compare 8 U.S.C. § 1229a (setting forth procedures for formal removal proceedings before an immigration judge) with id. § 1225(b)(1) (setting forth procedures for expedited removal proceedings before an immigration officer). In addition, the right to appeal expedited removals is extremely limited. See 8 U.S.C. § 1225(b)(1)(C) (providing that an expedited removal order \"is not subject to administrative appeal” except when an alien claims a fear of persecution or claims that he or she has been granted status as a permanent resident, asylee, or refugee). . In an expedited removal, an immigration official must make a determination of inadmissibility, create a record, ask the alien if he or she fears persecution, and sign an order of removal. See 8 U.S.C. § 1225(b)(l)(A)(i); 8 C.F.R. § 235.3(b)(2). In both an expedited removal and a simple turnaround, however, it is an immigration official —" }, { "docid": "22387102", "title": "", "text": "accepted its terms.” Id. at 908. Since the filing of petitioners’ initial brief, we have also adopted this principle. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 619 (9th Cir.2006) (holding that an expressed and understood threat of deportation is requisite to presence-breaking voluntary departure). Serrano argues that he was not advised of his privileges and rights and did not knowingly agree to administrative voluntary departure in 1990, that he did not have the opportunity to be heard by an immigration judge, and that he therefore did not interrupt the accrual of continuous physical presence. Yet Serrano’s account of the circumstances of his departure persuasively suggests otherwise. Serrano testified to the IJ that he was caught in a work raid conducted by the then-INS, and, crucially, admitted twice that he had been given the opportunity to go before an immigration court and had explicitly rejected it and signed a voluntary departure document instead, suggesting that he preferred removal because it was “faster.” Serrano’s case is thus critically different from cases where we have found that substantial evidence did not support the conclusion that the petitioner gave knowing and voluntary consent. In this case, Serrano’s own testimony establishes that he was given a choice between deportation proceedings and leaving voluntarily, and that he chose the latter. He alleges no misrepresentation by immigration officials, nor any other circumstances to indicate that his rejection of the offer to be heard by an IJ constituted anything other than a knowing and voluntary agreement to depart in lieu of removal proceedings. Serrano’s testimony is substantial evidence supporting the conclusion that Serrano knowingly and voluntarily consented to such voluntary departure. By contrast in Ibarra-Flores, 439 F.3d at 620, the petitioner gave plausible testimony that he did not knowingly and voluntarily accept administrative voluntary departure because of the misrepresentations of immigration officers. Based on this testimony, we concluded that substantial evidence did not support the IJ’s determination that the petitioner’s decision to accept voluntary departure was knowing and voluntary. Id. at 619. See also Tapia v. Gonzales, 430 F.3d 997, 1002 (9th Cir.2005) (holding that petitioner — who" }, { "docid": "22698197", "title": "", "text": "the purpose of eligibility for cancellation of removal? The IJ concluded that it does, reasoning that this case was also controlled by Ro-malez-Alcaide. The BIA affirmed without opinion. We disagree, however, and conclude that being turned away at the border by immigration officials does not have the same effect as an administrative voluntary departure and does not itself interrupt the accrual of an alien’s continuous physical presence. Because that was the reason Tapia was deemed ineligible for cancellation of removal, we grant his petition for review and remand for further proceedings. 1. BACKGROUND Tapia testified that he has been living in the United States since January of 1991 and has worked for the same employer since his arrival, beginning as a general field hand and progressing to a more senior full-time position at one of the company’s strawberry nurseries. He earns approximately $38,000 to $40,000 a year, and his employer provides housing for his family. In February 1997 Tapia married his wife, who at that time was also present here illegally. Ten months later they had a son born in the United States. Upon learning of his brother’s death, Tapia went to Mexico in December of 1999 to be with his parents. Beginning on January 14, 2000, Tapia attempted to cross back into the United States. On his first four attempts, Tapia was stopped, turned around, and sent back to Mexico each time. Each of Tapia’s thwarted crossings was documented by immigration officials, who entered his fingerprints and picture in the computer database designed to track individuals apprehended at the border. On his first attempt, he was apprehended at the point of entry in El Paso, Texas, detained for a few hours, and then simply released back to Mexico. The next day Tapia attempted to cross the border approximately sixteen miles away in Fabens, Texas. He was apprehended and returned to Mexico. Three days later he tried again in Fabens, with the same result. He next attempted to cross in Boulevard, California, on January 23, 2000. Once again, he was caught and released back to Mexico. On his fifth attempt," }, { "docid": "22337316", "title": "", "text": "inconsistent with continuous presence. Subsequent to the commencement of the administrative proceedings here, but prior to their resolution, the Attorney General, through a published regulation, clarified voluntary departure’s effect on continuous presence. In June 1999, the Attorney General issued 8 C.F.R. § 240.64(b)(3); it provides: at least for persons applying for “special rule cancellation of removal” under the Nicaraguan Adjustment and Central American Relief Act, Pub.L. No. 105-100, 111 Stat. 2160 (1997), “a period of continuous physical presence is terminated whenever ... the alien has voluntarily departed under the threat of deportation”. For the instant matter, the BIA ruled in April 2002. The next month, it decided in the earlier-cited In re Romalez-Alcaide, 23 I. & N. Dec. 423 (2002), that voluntary departure under threat of deportation interrupted continuous presence for cancellation purposes. In these instances, the Attorney General has determined that voluntary departure in circumstances such as these interrupts continuous presence. This conclusion is reasonable. Again, voluntary-departure, whether offered at the end of immigration proceedings or earlier at the border (as in this instance), is granted an alien as a form of clemency in return for his agreeing to relinquish his illegal presence. Voluntary departure is “pursuant to an agreement between [the illegal alien] and the Attorney General under which [the illegal alien] agreed to depart and not to return other than in accordance with the entry process applicable to all aliens”. Vasquez-Lopez, 343 F.3d at 974. When the Attorney General grants voluntary departure, the alien cannot later claim that he did so while continuing his continuous presence for use in a future adjudication for discretionary relief. In Vasquez-Lopez, the Ninth Circuit addressed the effect of voluntary departure, granted at the end of immigration proceedings, on continuous presence for cancellation purposes. There, the grant of voluntary departure necessarily followed the issuance of a Notice to Appear; here, the voluntary departure was at the border. Nevertheless, we agree with Vasquez-Lopez that the 1996 amendments do not require the Attorney General to conclude that, for cancellation purposes, voluntary departure does not interrupt continuous presence. 2. Mireles-Valdez also appears to claim a" }, { "docid": "22698214", "title": "", "text": "its approval of the Eighth Circuit’s decision in Reyes-Vasquez, since its own description of Reyes-Vasquez noted that the alien involved in that case had been fingerprinted by the Border Patrol. See 23 I. & N. Dec. at 805. The making of that kind of record does not amount to a “formal, documented process pursuant to which the alien was determined to be inadmissible.” Id. at 801. In contrast to the informality surrounding a turnaround at the border, where Congress has authorized immigration officials to make an actual determination of inadmissibility, it has identified specific procedures and authorized only certain individuals to make the determination, not any immigration or border officer. See 8 C.F.R. §§ 240.25(administrative voluntary departure), 235.3 (expedited removal). Nor does the existence of a record of a turnaround demonstrate that the alien entered into an agreement not to return to the United States later. There is no reason that Ta-pia should be treated differently just because a record was made when he was turned away. IV. CONCLUSION Because Tapia was turned around at the border without entering into a formal agreement with the government whereby the terms and conditions of his departure were clearly specified, and because he was not statutorily barred from immediately reapplying for admission to the United States, we grant his petition. We do not hold that Tapia has satisfied the requirement of being continuously present in the United States, but only that the fact that he was turned around at the border when he initially attempted to reenter did not interrupt the continuity of his presence. We therefore remand this matter to the BIA for further proceedings. To be statutorily eligible for cancellation of removal, Tapia must establish that he meets the ten-year physical presence requirement, as well as the other requirements set out in the statute. On remand both parties are entitled to present additional evidence regarding any of the predicate eligibility requirements, including continuous physical presence. PETITION GRANTED; REMANDED. . Cancellation of removal is authorized under 8 U.S.C. § 1229b, which provides the Attorney General with the authority to exercise discretion to" }, { "docid": "22600763", "title": "", "text": "departure. Although a voluntary departure under “threat” of deportation constitutes a break in continuous physical presence, Vasquez-Lopez, 343 F.3d at 970, as our sister circuits have recognized, “before it may be found that a presence-breaking voluntary departure occurred, the record must contain some evidence that the alien was informed of and accepted its terms.” Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 908 (8th Cir.2005) (emphasis added). As the Eighth Circuit has explained, the use of the phrase “under threat of deportation” implies that there is an expressed and understood threat of deportation. When an alien is legally permitted to depart voluntarily, he should “leave with the knowledge that he does so in lieu of being placed in proceedings” and therefore has no legitimate expectation that he may reenter and resume continuous presence. In re Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (2002) (en banc). Reyes-Vasquez, 395 F.3d at 907 (emphasis added) (alteration in original). Most recently, we have held that the type of agreement to depart that terminates an alien’s continuous physical presence is a formal one “whereby the terms and conditions of [the alien’s] departure were dearly specified.” Tapia, 430 F.3d at 1004 (emphasis added). Although Tapia did not involve a claim that the alien was misled into signing a voluntary departure form and voluntarily departing, Tapia’s reasoning is nonetheless applicable here. As we explained in Tapia, an agreement to accept voluntary departure is akin to a plea bargain in which the alien gives up any expectation that the alien can “ ‘illegally reenter and resume a period of continuous physical presence.’ ” Id. at 1002 (quoting Vasquez-Lopez, 343 F.3d at 973 (quoting In re Romalez-Alcaide, 23 I. & N. Dec. at 429)). Moreover, if voluntary departure is accepted in lieu of being placed in deportation or removal proceedings, the alien agrees to relinquish the right to present a claim for relief that might otherwise allow the alien to stay in the United States. Given the consequences of an agreement to accept voluntary departure, such an agreement, like a plea agreement, should be enforced against an alien only when" } ]

[ { "docid": "20209502", "title": "", "text": "members. The facts within defendant’s knowledge that were concealed must be material. See, e.g., Oestreicher v. Alienware Corp., 544 F.Supp.2d 964, 970-71 (N.D.Cal.2008) (citing four LiMandri factors and stating “[t]he first condition is not in issue here. [A]ll of the other situations require materiality”), aff'd, Oestreicher v. Alienware Corp., 322 Fed.Appx. 489 (9th Cir.2009). “[I]n order for non-disclosed information to be material, a plaintiff must show that ‘had the omitted information been disclosed, one would have been aware of it and behaved differently.’ ” Oestreicher, 544 F.Supp.2d at 971 (quoting Falk, 496 F.Supp.2d at 1095, in turn quoting Mirkin v. Wasserman, 5 Cal.4th 1082, 1093, 23 Cal.Rptr.2d 101, 858 P.2d 568 (1993)). As noted, “[mjateriality ... is judged by the effect on a ‘reasonable consumer.’ ” Id. (citing Consumer Advocates v. Echostar Satellite Corp., 113 Cal.App.4th 1351, 1360, 8 Cal.Rptr.3d 22 (2003)). “[W]here, as here, a plaintiffs claim is predicated on a manufacturer’s failure to inform its customers of a product’s likelihood of failing outside the warranty period, the risk posed by such asserted defect cannot be ‘merely’ the cost of the product’s repair ...; rather, for the omission to be material, the failure must pose ‘safety concerns.’ ” Smith, 749 F.Supp.2d at 987 (citing Daugherty v. Am. Honda Motor Co., Inc., 144 Cal.App.4th 824, 835-38, 51 Cal.Rptr.3d 118 (2006)). “In other words, under California law, and as recently described by the Ninth Circuit: ‘A manufacturer’s duty to consumers is limited to its warranty obligations absent either an affirmative misrepresentation or a safety issue.’ ” Id. (citing Oestreicher, 322 Fed.Appx. at 493) (affirming the dismissal of CLRA, UCL and fraudulent concealment claims because plaintiff failed to allege that defendant had ‘affirmatively misrepresented its products’ or that the alleged defect ‘posed a threat to his own safety or the safety of others’). See also Smith, 749 F.Supp.2d at 987 (“The California Court of Appeal has held that a manufacturer cannot be found liable under the CLRA for failure to disclose a defect that manifests itself after expiration of the warranty period unless such omission (1) is ‘contrary to a representation actually" } ]

[ { "docid": "21650656", "title": "", "text": "of the FDCA and the Sherman law. Accordingly, for the same reasons the Court granted Defendant’s motion to dismiss as to the FAL, CLRA, fraudulent prong UCL cause of action, and unlawful prong UCL cause of action, the Court GRANTS Defendant’s motion to dismiss Plaintiffs unfair prong UCL cause of action. The'Court provides leave to amend to the same extent that the Court provided leave to amend for Plaintiffs' claims under the FAL, CLRA, fraudulent prong of the UCL, and unlawful prong of the UCL. C. Express Warranty Plaintiff asserts a breach of express warranty under California law. Cal. Com. Code § 2313. Under § 2313, an express warranty is created through “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” Id. “In order to plead a chuse of action for breach of express warranty, one must allege the exact terms of the warranty, plaintiffs reasonable reliance thereon, and a breach of that warranty which proximately causes plaintiff injury.” Williams v. Beechnut Nutrition Corp., 185 Cal.App.3d 135, 142, 229 Cal.Rptr. 605 (1986). A description of the goods at issue can create an express warranty so long as it was part of the basis of. the bargain between the parties. See Cal. Com. Code § 2313(l)(b). Plaintiff has inadequately pled a cause of action for breach of implied warranty because Plaintiff has failed to “allege the exact terms of the warranty” for each product at issue. Beechnut, 185 Cal.App.3d at 142, 229 CahRptr. 605. Plaintiff alleges that a litany of statements, undifferentiated by product variant, constitute the -express warranty. FAC ¶¶427 (listing 65 different statements without indicating for which of the 53 products those statements provide a warranty). Such a list of statements does not indicate the exact terms of the warranty for each product at issue. Moreover, an express warranty claim requires that the statements be part of the “basis of the bargain,” and the “basis of the" }, { "docid": "3428318", "title": "", "text": "the manufacturer disclose it if a “reasonable consumer” would deem it “important in determining how to act in the transaction at issue.” Id. at 256, 134 Cal.Rptr.3d 588; see also O’Shea v. Epson Am., Inc., No. CV 09-8063 PSG (CWx), 2011 WL 3299936, at *6 (C.D.Cal. July 29, 2011) (“Materiality exists if the. omitted information would cause a reasonable consumer to behave differently if he or she were aware of it.”). a. Plaintiff Cannot State a Claim Under a “Duty to Disclose” Theory to the Extent the Alleged Defect Manifested Itself Post-Warranty Where a plaintiff predicates his CLRA claim on a manufacturer’s failure to inform a customer of a latent defect which creates a likelihood of the product failing outside the warranty period, the Ninth Circuit has narrowly construed the circumstances in which such omission will be deemed “material.” In Wilson v. Hewlett-Packard, the Ninth Circuit — construing and applying the California Court of Appeal’s decision in Daugherty v. American Motor Co., 144 Cal.App.4th 824, 51 Cal.Rptr.3d 118 (2006) — held that “ ‘[a] manufacturer’s duty to consumers is limited to its warranty obligations absent either an affirmative misrepresentation or a safety issue.’ ” Wilson, 668 F.3d at 1141 (quoting Oestreicher v. Alienware Corp., 322 Fed.Appx. 489, 493 (9th Cir.2009) (emphasis added)). In Daugherty, car buyers filed a putative class action against Honda, alleging that it breached its express warranties and violated the CLRA by failing to disclose an engine defect. Daugherty, 144 Cal.App.4th at 828, 51 Cal.Rptr.3d 118. It was 'alleged that this defect frequently would not manifest itself until long after the warranty expired. The court noted that “al-' though a claim may be stated under the CLRA in terms constituting fraudulent omissions, to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.” Id. at 835, 51 Cal.Rptr.3d 118. The plaintiffs attempted to meet this second standard, by arguing that Honda had “knowledge of ‘unreasonable risk’ to plaintiffs at the time of sale.” Id. at 836, 51 Cal.Rptr.3d 118. The" }, { "docid": "3428333", "title": "", "text": "WL 1595112, at *14 (N.D.Cal. May 4, 2012). Accordingly, the Court finds that Wilson is binding precedent. b. Plaintiff Cannot State a CLRA Claim for a Defect Arising Within the Warranty Period Plaintiff argues that the “safety concern” requirement does not bar his CLRA claim because the defect with the 27-inch iMac display “often appears within the warranty period.” PI. Opp. at 13. A number of courts have noted that the “safety concern” requirement for a fraudulent omission claim under the CLRA does not apply where the defect in question arises during the products’ warranty peri od. In Decker v. Mazda Motor of America, Inc., No. SACV 11-0873 AG (MLGx), 2011 WL 5101705 (C.D.Cal. Oct. 24, 2011), the district court stated: A proper reading of Daugherty reveals a two-step duty to disclose analysis. First, a manufacturer has a duty to disclose any defects that fall within the warranty period, whether relating to safety or to costly repairs, that would have caused the consumer to not purchase the car if they had been disclosed. Second, a manufacturer also has a duty to disclose safety issues that fall outside of the warranty period. Id. at *4. This is consistent with the approach adopted by other district courts. See, e.g., Hodges v. Apple Inc., No. 13-cv-01128-WHO, 2013 WL 6698762, at *7 (N.D.Cal. Dec. 19, 2013) (“[A] plaintiff can state a UCL or CLRA omissions claim without alleging a such safety risk where the facts involve an undisclosed defect present from the time of manufacture of which the defendant was aware.” (internal quotation marks omitted)); Apodaca v. Whirlpool Corp., No. SACV 13-00725 JVS, 2013 WL 6477821, at *7 (C.D.Cal. Nov. 8, 2013) (“The Court does not find Defendant’s case law supports the claim that a safety defect must be alleged for a duty to disclose to arise within the warranty period.”). The rationale for this distinction, as asserted by the district court in Decker, is that “[i]t makes logical sense that the average consumer would expect the manufacturer to disclose significant defects of any nature that arise within the warranty period. But outside of" }, { "docid": "17531430", "title": "", "text": "they also bring claims on behalf of a putative class of people in California and elsewhere who bought a variety of Defendant’s other Products that the named Plaintiffs did not buy. Plaintiffs allege that Defendant’s marketing of the Products is misleading because: (1) some Products are labeled “All Natural” despite containing artificial or unnatural ingredients, flavoring, coloring, or preservatives; (2) some Products are labeled as containing “0 Grams Trans Fat” despite having total fat levels that render such a claim misleading; (3) some Products contain MSG but are labeled as having “No MSG”; and (4) Defendant’s website, whose address appears on some Products’ labels, is a “label” subject to FDA regulations, and it makes claims about the Products that are misleading and unlawful. Plaintiffs claim that they care about buying healthy foods, e.g., foods with artificial ingredients or high levels of fat, and that they would not have bought any of the Products if they knew that Defendant’s claims about such ingredients were not true. See, e.g., SAC ¶¶ 46-47, 60, 64-65, 80, 82, 86-87,104,128,141,154. B. Procedural Background In their FAC, Plaintiffs asserted nine causes of action against Defendant: (1-3) violations of the “unlawful,” “unfair,” and “fraudulent” prongs of California’s Unfair Competition Law’s (“UCL”), Cal. Bus. & Prof.Code § 17200, et seq.; (4-5) violations of the “misleading and deceptive” and “untrue” prongs of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof.Code § 17500, et seq.; (6) violations of California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ.Code § 1750, et seq.; (7) restitution based on unjust enrichment or quasi-contract; (8) breach of warranty under California’s Song-Beverly Act, Cal. Civ.Code § 1790, et seq.; and (9) breach of warranty under the federal MagnusonMoss Act, 15 U.S.C. § 2301, et seq. Defendant moved to dismiss the FAC. The Court granted Defendant’s motion in part and denied it in part, dismissing Plaintiffs’ breach of warranty claim with prejudice but granting Plaintiffs leave to amend their other claims. ECF No. 46 (“Apr. 1 Order”) at 31-32. Specifically, the Court allowed Plaintiffs to plead more specific facts about the Non-Purchased Products and about how Defendant’s" }, { "docid": "15087026", "title": "", "text": "claim. CONCLUSION BMW’s motion to dismiss is DENIED in all respects, except that the Court DISMISSES WITHOUT PREJUDICE Plaintiffs fraud-based UCL and CLRA claims for his failure to plead actual reliance. He is GRANTED LEAVE TO AMEND his complaint to remedy that defect, but any amended complaint must be filed no later than 20 days from the filing of this Order. Failure to do so will result in dismissal of his fraud-based CLRA and UCL claims WITH PREJUDICE. IT IS SO ORDERED. . The facts are taken from Plaintiff's First Amended Complaint. (Docket No. 4.) The Court also GRANTS BMW’s request for judicial notice of Exhibits 1 and 2 of the Kizirian Declaration, which are the relevant express warranty for Plaintiff's MINI and the \"Tech-meal Service Bulletin” alleged in the FAC. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005) (stating that a court may consider documents \"whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiffs] pleading.” (brackets in original)). . Plaintiff does not say so explicitly, but the Court interprets his fraud-based UCL and CLRA allegations as claiming fraudulent omissions, which rest on BMW's failure to disclose the cracking defect. . Counsel for BMW was also counsel for Honda in Daugherty and he notes that the issue of safety was not pled or argued in the trial court, and was raised only in a reply brief on appeal, prompting the court at oral argument to decline to consider the issue. Even if true, the written and published opinion in Daugherty left open the possibility of a safety exception. . Other courts have recognized the safety exception in Daugherty. See, e.g., Marsikian v. Mercedes Benz USA, LLC, No. CV 08-4876 AHM (JTLx), 2009 WL 8379784, at *5-7, 2009 U.S. Dist. LEXIS 117012, at *13-17 (C.D.Cal. May 4, 2009); In re OnStar Contract Litig., 600 F.Supp.2d 861, 869-70 (E.D.Mich.2009); Oestreicher v. Alienware Corp., 544 F.Supp.2d 964, 969-73 (N.D.Cal.2008) (recognizing safety exception and finding defect was not safety-related), aff'd 322 Fed.Appx. 489 (9th Cir.2009). The Court declines to" }, { "docid": "23649063", "title": "", "text": "that HP concealed a design defect, Plaintiffs contend that California law does not require that a concealed fact relate to a safety issue for liability to attach; rather, Plaintiffs cite to Falk v. General Motors Corp., 496 F.Supp.2d 1088 (N.D.Cal.2007), in arguing that the concealed fact need only be “material.” California courts have generally rejected a broad obligation to disclose, adopting instead the standard as enumerated by the California Court of Appeal in Daugherty v. American Honda Motor Co., 144 Cal. App.4th 824, 51 Cal.Rptr.3d 118 (Ct.App. 2006). Daugherty held that a manufacturer is not liable for a fraudulent omission concerning a latent defect under the CLRA, unless the omission is “contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.” Id. at 835, 51 Cal.Rptr.3d 118; see Oestreicher v. Alienware Corp., 544 F.Supp.2d 964, 969 (N.D.Cal.2008), aff'd, 322 Fed.Appx. 489, 493 (9th Cir.2009) (discussing Daugherty). The Daugherty court found the plaintiff alleged no facts establishing that the manufacturer was “bound to disclose,” as the complaint did not allege “any instance of physical injury or any safety concerns posed by the defect.” Daugherty, 144 Cal. App.4th at 836, 51 Cal.Rptr.3d 118. The court noted that the plaintiff merely alleged that the risk posed by the alleged defect was the cost to repair the product, which did not give rise to a duty to disclose. Id. Consequently, the court also rejected plaintiffs UCL claim, since absent a duty to disclose, the failure to disclose a defect “that might, or might not” shorten the useful life of a car that “functions precisely as warranted throughout the term of its express warranty” is not an unfair or fraudulent business practice under the UCL. Id. at 838-39, 51 Cal. Rptr.3d 118. California federal courts have generally interpreted Daugherty as holding that “[a] manufacturer’s duty to consumers is limited to its warranty obligations absent either an affirmative misrepresentation or a safety issue.” Oestreicher, 322 Fed.Appx. at 493; see, e.g., O’Shea v. Epson Am., Inc., No. CV 09-8063 PSG (CWx), 2011 WL 3299936, at *7-9," }, { "docid": "20398393", "title": "", "text": "home warranties they only need to prove Fibermesh is an inherently defective product the use of which is substantially certain to lead to foundation failure.... We conclude, therefore, if plaintiffs prove their foundations contain an inherent defect which is substantially certain to result in malfunction during the useful life of the product they have established a breach of Kaufman’s express and implied warranties”); see also Ehrlich v. BMW of North America, LLC, 801 F.Supp.2d 908, 924 (C.D.Cal.2010) (“[S]o long as a latent defect existed within the one-year period, its subsequent discovery beyond that time did not defeat an implied warranty claim”); Mexia v. Rinker Boat Co., 174 Cal. App.4th 1297, 1305-06, 95 Cal.Rptr.3d 285 (2009) (“In the case of a latent defect, a product is rendered unmerchantable, and the warranty of merchantability is breached, by the existence of the unseen defect, not by its subsequent discovery”). As with plaintiffs’ express warranty claim, if defendants can demonstrate that the design specification requiring 1.5 degrees of negative camber is not “substantially certain” to result in the excessive and premature tire wear about which plaintiffs complain, they will prevail. If plaintiffs, on the other hand, can demonstrate that the specification is substantially certain to result in premature and excessive tire wear that renders the vehicles unfit for driving, they will prevail. The breach of implied warranty claim is therefore susceptible of common proof, and the court will certify the implied warranty claim for class treatment. vi. The Applicability of California Law to Residents of Other States Defendants also oppose certification of the CLRA, UCL, express warranty and implied warranty claims on the basis that plaintiffs seek to apply California law to individuals who reside outside the state and purchased their cars outside the state. Plaintiffs contend that due process and California choice of law principles permit the application of California law to such individuals. Although the parties do not denominate this issue a predominance question, it is clear that it affects the definition of the class and whether common issues predominate. The court thus addresses it at this juncture. See Mazza, 666 F.3d" }, { "docid": "3428319", "title": "", "text": "duty to consumers is limited to its warranty obligations absent either an affirmative misrepresentation or a safety issue.’ ” Wilson, 668 F.3d at 1141 (quoting Oestreicher v. Alienware Corp., 322 Fed.Appx. 489, 493 (9th Cir.2009) (emphasis added)). In Daugherty, car buyers filed a putative class action against Honda, alleging that it breached its express warranties and violated the CLRA by failing to disclose an engine defect. Daugherty, 144 Cal.App.4th at 828, 51 Cal.Rptr.3d 118. It was 'alleged that this defect frequently would not manifest itself until long after the warranty expired. The court noted that “al-' though a claim may be stated under the CLRA in terms constituting fraudulent omissions, to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.” Id. at 835, 51 Cal.Rptr.3d 118. The plaintiffs attempted to meet this second standard, by arguing that Honda had “knowledge of ‘unreasonable risk’ to plaintiffs at the time of sale.” Id. at 836, 51 Cal.Rptr.3d 118. The court found that plaintiffs’ allegations were insufficient to establish that the defendant was obliged to disclose the risk. The court found that the only “risk” plaintiffs had alleged was the “risk of ‘serious potential damages’— namely, the cost of repairs in the event the defect ever causes an oil leak.” Id. It further noted that the complaint was “de void of factual allegations showing any instance of physical injury or any safety concerns posed by the defect.” Id. Accordingly, it concluded that plaintiffs had failed to state a viable non-disclosure claim under the CLRA. Similarly, in Wilson, plaintiffs sued Hewlett-Packard alleging that HP had concealed a design defect within their laptop computers that both manifested after the warranty expired and created an unreasonable safety hazard in violation of the CLRA and UCL. Specifically, plaintiffs alleged that after approximately two years of use, their laptop would begin displaying “low power” warnings and would run on battery power even when plugged into an a/c adapter. Wilson, 668 F.3d at 1138. After reviewing the holding in Daugherty, the" }, { "docid": "21650655", "title": "", "text": "of the UCL); see also In re Actimmune Mktg. Litig., 2009 WL 3740648, at *14 (N.D. Cal. Nov. 6, 2009), aff'd, 464 Fed.Appx. 651 (9th Cir. 2011) (dismissing unfair prong UCL cause of action where “plaintiffs’ unfair prong claims overlap entirely with their claims of fraud”). Here, Plaintiff alleges that Defendant violated the unfair prong of the UCL because Defendant “label[ed], adver-tis[ed], and s[old] [] high sugar cereals” and because Plaintiffs product packaging violated the FAL, CLRA, FDCA, and the Sherman law. FAC ¶¶ 421-23. These allegations indicate that Plaintiffs unfair prong UCL cause of action is based on the same contentions discussed above that either (1) Plaintiff fraudulently sold unhealthy products while representing they were healthy, or (2) violated specific provisions of the FDA regulations. However, the Court concluded above that Plaintiff has inadequately alleged a violation of the FAL, CLRA, and fraudulent prong of the UCL. Moreover, the Court granted Defendant’s motion to dismiss Plaintiffs unlawful prong UCL cause of action as to all of the statements that Plaintiff alleges are in violation of the FDCA and the Sherman law. Accordingly, for the same reasons the Court granted Defendant’s motion to dismiss as to the FAL, CLRA, fraudulent prong UCL cause of action, and unlawful prong UCL cause of action, the Court GRANTS Defendant’s motion to dismiss Plaintiffs unfair prong UCL cause of action. The'Court provides leave to amend to the same extent that the Court provided leave to amend for Plaintiffs' claims under the FAL, CLRA, fraudulent prong of the UCL, and unlawful prong of the UCL. C. Express Warranty Plaintiff asserts a breach of express warranty under California law. Cal. Com. Code § 2313. Under § 2313, an express warranty is created through “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” Id. “In order to plead a chuse of action for breach of express warranty, one must allege the exact terms of the" }, { "docid": "17531431", "title": "", "text": "B. Procedural Background In their FAC, Plaintiffs asserted nine causes of action against Defendant: (1-3) violations of the “unlawful,” “unfair,” and “fraudulent” prongs of California’s Unfair Competition Law’s (“UCL”), Cal. Bus. & Prof.Code § 17200, et seq.; (4-5) violations of the “misleading and deceptive” and “untrue” prongs of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof.Code § 17500, et seq.; (6) violations of California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ.Code § 1750, et seq.; (7) restitution based on unjust enrichment or quasi-contract; (8) breach of warranty under California’s Song-Beverly Act, Cal. Civ.Code § 1790, et seq.; and (9) breach of warranty under the federal MagnusonMoss Act, 15 U.S.C. § 2301, et seq. Defendant moved to dismiss the FAC. The Court granted Defendant’s motion in part and denied it in part, dismissing Plaintiffs’ breach of warranty claim with prejudice but granting Plaintiffs leave to amend their other claims. ECF No. 46 (“Apr. 1 Order”) at 31-32. Specifically, the Court allowed Plaintiffs to plead more specific facts about the Non-Purchased Products and about how Defendant’s website could constitute “labeling” such that claims asserted on it could predicate Plaintiffs’ various causes of action. In their SAC, Plaintiffs include more facts about the Non-Purchased Products and Defendant’s website. With their breach of warranty claim having been dismissed with prejudice, and with Plaintiffs having chosen not to re-plead their restitution claim, the only causes of action remaining in the case are Plaintiffs’ UCL, FAL, and CLRA claims. The SAC elaborates on Plaintiffs’ theories for their UCL, FAL, and CLRA claims, and also alleges new violations based on the Non-Purchased Products. Defendant now moves to dismiss the SAC. III. LEGAL STANDARD A. Motions to Dismiss A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988). “When there are well-pleaded factual alle gations," }, { "docid": "5203684", "title": "", "text": "ORDER GRANTING IN PART AND DENYING IN PART THE TOYOTA DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED ECONOMIC LOSS MASTER CONSOLIDATED COMPLAINT; ORDER GRANTING IN PART AND DENYING PART MOTION TO STRIKE; ORDER DENYING REQUEST FOR JUDICIAL NOTICE JAMES V. SELNA, District Judge. Table of Contents I. Factual Allegations......................................................1157 II. Request for Judicial Notice...............................................1159 III. Article III Standing......................................................1160 A. Summary of Parties’ Positions........................................1161 B. Discussion..........................................................1162 1. Plaintiffs Establish an Economic Loss by Plausibly Alleging a Safety Defect ..........................................'........1163 2. The Economic Loss Ensuing from the Safety Defect Is Actual or Imminent.....................................................1165 3. All Lead Plaintiffs Do Not Establish Standing Based on a Credible Threat of Future Harm.........................................1166 C. Conclusion as to Article III Standing..................................1167 IV. Standing to Assert UCL, FAL, and CLRA Claims...........................1167 A. UCL and FAL ......................................................1168 1. Plaintiffs Allege a Money or Property Loss..........................1168 2. Plaintiffs Allege Actual Reliance...................................1168 B. CLRA..............................................................1169 V. Rule 12(b)(6) and Rule 12(f) Standards.....................................1170 A. Motion to Dismiss Pursuant to Rule 12(b)(6)........ 1170 B. Motion to Strike Ptirsuant to Rule 12(f)................................1170 VI. Plaintiffs’ CLRA, UCL, and FAL Claims (First, Second, and Third Causes of Action).............................................................1170 VII. Express and Implied Warranties (Fourth and Fifth Causes of Action) .........1173 A. Express Written Warranty.......................'.....................1173 B. Implied Warranty...................................................1176 C. Ruling Regarding Warranty Claims...................................1177 VIII. Revocation of Acceptance (Sixth Cause of Action)............................1177 IX. Breach of Contract/Common Law Warranty (Eighth Cause of Action)..........1178 X. Unjust Enrichment (Tenth Cause of Action) 1178 XI. Auto Lenders Liquidation Center, Inc. 1178 1179 XII. Availability of Injunctive Relief, Restitution and/or Restitutionary Disgorgement............................................. XIII. Conclusion........................ 1179 Presently before the Court are Defendants’ Motion to Dismiss and Motion to Strike portions of the Second Amended Economic Loss Master Consolidated Complaint (hereinafter referred to, for the sake of simplicity, as “the Complaint”), as well as a related Request for Judicial Notice (“RJN”). (See Docket Nos. 580 (current operative Complaint on behalf of the domestic economic loss Plaintiffs), 734 (Notice of Motion to Dismiss), 735 (Notice of Motion to Strike), 736 (Memorandum of Points and Authorities in Support of both Motions) (hereinafter “Defs.’ Mem.”), 738 (Request for Judicial Notice).) Previously, on November 30, 2010, the Court issued its" }, { "docid": "8992321", "title": "", "text": "asserts claims for (1) Violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”); (2) Violations of the Consumer Legal Remedies Act, Cal. Civ.Code §§ 1750, et seq. (“CLRA”); (3) Violations of the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. (“UCL”); (4) Violation of the California False Advertising Law, Cal. Bus. & Prof.Code §§ 17500, et seq. (“FAL”); (5) Breach of Express Warranty, Cal. Com.Code § 2313; (6) Breach of the Implied Warranty of Merchantability, Cal. Com.Code § 2314; (7) Revocation of Acceptance, Cal. Com.Code § 2608; (8) Violations of the MagnusonMoss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301, et seq. (“MMA”); (9) Breach of Contract/Common Law Warranty; (10) Fraud by Concealment; (11) Negligence; (12) Products Liability/Design Defect; and (13) Unjust Enrichment. In two separate Motions to Dismiss, the Toyota Defendants have moved (1) pursuant to Fed.R.Civ.P. 12(b)(7), to dismiss for failure to join parties under Fed.R.Civ.P. 19, and (2) pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss for failure to state a claim upon which relief can be granted. {See Docket Nos. 657, 659, 661, 663, 664.) Plaintiffs have filed a joint Opposition thereto, and the Toyota Defendants have filed Reply briefs. {See Docket Nos. 805 (Opposition), 906 (TMCC Reply), 935 (Reply of other Toyota Defendants).) For purposes of this Order, the Court discusses all the issues even though some individual issues may be dispositive. As set forth herein, the Court grants the separate Motion to Dismiss of TMCC, dismissing all claims asserted against it with prejudice. Also as set forth herein, the Motion to Dismiss filed by the remaining Toyota Defendants is also granted, on multiple grounds: • Because the foreign Plaintiffs have failed to set forth factual allegations establishing Article III standing, the Court concludes it lacks subject-matter jurisdiction; • Because the Court lacks personal jurisdiction over certain indispensable parties, the AFELMCC must be dismissed pursuant to Rule 19 of the Federal Rules of Civil Procedure; • Because judicially noticed materials establish Plaintiffs cannot plead plausible claims against the U.S. Toyota Defendants on the basis" }, { "docid": "11853955", "title": "", "text": "applicability of the disclaimer. Second, Johnson has argued that the disclaimer is unconscionable. Under Minnesota law, when a plaintiff challenges a disclaimer as unconscionable, the Court must allow the plaintiff “the opportunity to submit evidence regarding the disclaimer’s commercial setting, purpose, and effect.” In re Hardieplank, 2013 WL 3717743, at *8 (citing Minn. Stat. § 336.2-302)). The Court therefore cannot apply the disclaimer without first giving Johnson this opportunity. Third, as discussed above, there is a factual dispute regarding whether Johnson actually received the formal warranty at the time of sale; this again precludes the Court from applying the disclaimer at this stage of the case. See Zutz, 2006 WL 463539, at *3 (“If a disclaimer is not provided at the time of sale, it is invalid.”) Based on the above, the Court will deny Bobcat’s motion to dismiss , the breach of express warranty claim. C, Breach of Implied Warranties Johnson alleges that Bobcat breached the implied warranties of merchantability and fitness for a particular purpose by selling him a defective loader. Bobcat moves to dismiss these claims, again relying on the disclaimer in the formal warranty. For the reasons explained in the immediately preceding section, however, the Court will not apply the disclaimer at this stage of the litigation — Johnson has challenged the disclaimer as unconscionable and there are unresolved factual questions regarding whether Johnson received the disclaimer at the time of sale. D. Negligence and Negligent Misrepresentation Bobcat argues that Johnson’s negligence and negligent misrepresentation claims are barred by the economic loss doctrine, and the Court concurs. The economic loss doctrine generally prohibits a plaintiff “from recovering purely economic losses in tort.” Thunanderv. Uponor, Inc., 887 F.Supp.2d 850, 871 (D.Minn.2012). In Minnesota, the economic loss doctrine is codified at Minn, Stat. § 604.101. This section “exhaustively states the economic loss doctrine” and thus abrogates the common law version of the doctrine. Ptacek v. Earthsoils, Inc., 844 N.W.2d 535, 538-39 (Minn.Ct.App.2014) (quoting Minn. Stat. § 504.101). The statutory economic loss doctrine applies to only two types of claims: product defect tort claims and common law misrepresentation claims." }, { "docid": "23649065", "title": "", "text": "2011 U.S. Dist. LEXIS 85273, at *24-28 (C.D.Cal. July 29, 2011) (noting that, “[although California courts are split on this issue,” the weight of authority suggests that the duty to disclose is limited to safety issues); In re Sony Grand Wega KDF-E A10/A20 Series Bear Projection HDTV Television Litig., 758 F.Supp.2d 1077, 1095 (S.D.Cal.2010) (“[A] manufacturer’s duty to disclose under the CLRA is limited to safety-related issues.”); Morgan v. Harmonix Music Sys., Inc., No. C08-5211 BZ, 2009 WL 2031765, at *4, 2009 U.S. Dist. LEXIS 57528, at *11-12 (N.D.Cal. July 7, 2009) (“According to all relevant case law, defendants are only under a duty to disclose a known defect in a consumer product when there are safety concerns associated with the product’s use.”). Courts have also cited policy considerations to limit the duty to disclose, noting that to broaden the duty to disclose beyond safety concerns “would eliminate term limits on warranties, effectively making them perpetual or at least for the ‘useful life’ of the product.” Oestreicher, 544 F.Supp.2d at 972. Under a contrary rule, as the Court of Appeal noted in Daugherty, the “[failure of a product to last forever would become a ‘defect,’ a manufacturer would no longer be able to issue limited warranties, and product defect litigation would become as widespread as manufacturing itself.” 144 Cal.App.4th at 829, 51 Cal.Rptr.3d 118. Plaintiffs maintain that Falk supports a CLRA claim where a manufacturer conceals a material fact independent of safety concerns. See also Cirulli v. Hyundai Motor Co., No. SACV 08-0854 AG (MLGx), 2009 WL 5788762, at *3-4, 2009 U.S. Dist. LEXIS 125139, at *9 (C.D.Cal. June 12, 2009) (holding that plaintiffs plausibly alleged CLRA and UCL claims based on materiality without discussing safety concerns); Bristow v. Lycoming Engines, No. CIV. S-06-1947 LKK GGH, 2007 WL 1106098, at *7-8, 2007 U.S. Dist. LEXIS 31350, at *21-22 (E.D.Cal. Apr. 10, 2007). Courts have held that, while Falk applied the correct standard to judge materiality, safety considerations were “integral to the [Falk] court’s finding that the non-disclosed information was material.” Oestreicher, 544 F.Supp.2d at 971; see O’Shea, 2011 WL 3299936," }, { "docid": "17180384", "title": "", "text": "FAL, and CLRA. In light of this ruling, the Court DENIES Defendants’ Motion to Strike as moot. D. Rule 12(b)(6) Finally, Defendants argue that, pursuant to Rule 12(b)(6), all of Brazil’s causes of action must be dismissed due to failure to state a claim upon which relief may be granted. 1. UCL, FAL, and CLRA Claims In light of the Court’s ruling in Parts III.A, III.B., and III.C. of this Order, the Court declines to address Defendants’ additional arguments that Brazil’s FAC should be dismissed pursuant to Rule 12(b)(6) because Brazil: (1) lacks standing to assert a claim under the UCL and FAL; (2) has failed to plead actual reliance or causation; and (3) Plaintiffs claims under the unlawful and unfairness prongs fail because they cannot be based on alleged FDCA violations as the “FDA maintains exclusive enforcement authority, and the FDCA precludes any private right of action.” Mot at 23. 2. Song-Beverly Consumer Warranty Act Defendants contend that Brazil has not stated a claim under the Song-Beverly Consumer Warranty Act. The Court agrees, and DISMISSES this claim with prejudice. The Song-Beverly Consumer Warranty Act provides that “every sale of consumer goods that are sold at retail in [California] shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable.” Cal. Civ.Code § 1792. Under the Act, a “consumer good” is defined as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables.” Cal. Civ.Code § 1791(a) (emphasis added). Brazil does not dispute that all of the products at issue in this case are consumables. Therefore, all of Defendants’ products are excluded from the Act. Because Brazil has not, and cannot; allege a breach of the Song-Beverly Consumer Warranty Act, the Court GRANTS Defendants’ Motion to Dismiss this cause of action with prejudice. 3. Magnuson-Moss Warranty Act In addition, Defendants seek to dismiss Brazil’s claim under the Magnuson-Moss Warranty Act (“MMWA”). The Court finds that Brazil has failed to state a viable cause of action under the MMWA" }, { "docid": "14302", "title": "", "text": "supplied in accordance with representations about the products and were not (§ 1770(a)(16)); (iii) . California’s , Unfair Competition Law (“UCL,” Cal. Bus. & Prof. Code § 17200) prohibiting unlawful, unfair, or fraudulent business practices by: (a) fraudulently using the health and wellness claims on products containing high amounts of added sugar; (b) unfairly labeling products in an unethical and unscrupulous manner in violation of public policy; and (c) unlawfully labeling products in violation of the FAL, the CLRA, the FDCA, and the Sherman Law; (iv) Breach of Express Warranty under California law based on 90 identified affirmations of fact and promises conveying that the products would be healthy and nutritious when they were not; and (v) Breach of Implied Warranty under California law based on Post’s acts and omissions in the sale, marketing and promotion of these high-sugared cereals. Post moves to dismiss the FAC for five main reasons: (1) plaintiffs’ claims are preempted by federal law; (2) Post’s cereal' products do not contain any labeling statements that violate federal or state law; (3) plaintiffs'fail to «state a claim for relief under the UCL, FAL, or CLRA; (4) Post did not breach any express or implied warranty; and (5) plaintiffs lack standing to seek injunctive relief, bring claims for unpurchased products, and challenge Post’s advertising statements directed at children. Mot. 1. In the'alternative, Post requests that I stay this case under the doctrine of primary jurisdiction. Mot. 29-30. LEGAL STANDARD A motion to dismiss is proper under Federal Rule of Civil Procedure’ 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The court must “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The complaint “does not need detailed factual allegation's,” but'instead only heeds enough factual allegations “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167" }, { "docid": "5101601", "title": "", "text": "ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND MOTION TO STRIKE JAMES V. SELNA, District Judge. Table of Contents I. Factual Allegations......................................................1156 II. Article III Standing......................................................1160 A. A Manifested SUA Defect Is Not Necessary for Standing.................1161 B. Pleading a Cognizable Loss under a “Benefit of the Bargain” Theory.... 1164 C. Lead Plaintiffs Must Plead a Cognizable Loss under a “Benefit of the Bargain” Theory..................................................1166 D. The Warranties Do Not Preclude Standing.............................1167 E. Conclusion for Article III Standing....................................1168 III. Standing to Assert UCL, FAL, and CLRA Claims...........................1168 IV. Rule 12(b)(6) and Rule 12(f) Standards.....................................1169 A. Motion to Dismiss Pursuant to Rule 12(b)(6) ...........................1169 B. Motion to Strike Pursuant to Rule 12(f)................................1169 V. Plaintiffs’ CLRA UCL, and FAL Claims (First, Second, and Third Causes of Action).............................................................1170 A. Heightened Pleading Standard Under Rule 9(b).........................1170 1. Generalized Statements...........................................1171 2. Specific Defect Allegations........................................1171 B. CLRA Claims......................................... 1172 1. Material Facts ..................................................1173 2. Exclusive Knowledge and Active Concealment.......................1174 3. Damages........................................................1174 C. UCL Claims........................................................1175 D. FAL Claims.................................... 1176 E. Motion to Strike CLRA and UCL Claims...............................1177 VI. Express and Implied Warranties (Fourth and Fifth Causes of Action) .........1177 A. Express Written Warranty ...........................................1177 1. Terms..........................................................1177 2. Limited Remedy of Repair or Adjustment ..........................1178 3. Requirement of Presentment for Repair Within the Warranty Period and Requirement of Notice Before Filing Suit ..............1178 a. Contractual Requirement of Presentment for Repair Within the Warranty Period .......................................1178 b. Statutory Requirement of Notice Before Filing Suit..............1180 4. Design Defect as Beyond the Scope of “Materials and Workmanship\"................................................1180 5. Unconscionability ...............................................1181 B. Express Warranty Created by Representations in Advertisements.........1182 C. Implied Warranty...................................................1183 1. The Requirement of Privity.......................................1183 a. Exception to Privity Requirement for Third-Party Beneficiaries..............................................1184 b. Exception: Dangerous Instrumentality.........................1185 2. Manifestation of Defect...........................................1186 VII.Breach of Contract/Common Law Warranty Claims (Eighth Cause of Action)...............................................................1186 VIII. Revocation of Acceptance (Sixth Cause of Action)............................1186 IX. Magnuson-Moss Warranty Act (Seventh Cause of Action)....................1188 A. Relation to State Warranty Claims....................................1188 B. Requirement that Consumers Follow Dispute Resolution Process..........1188 X. Fraud by Concealment (Ninth Cause of Action) .............................1189 A. Heightened Pleading Requirement and Elements........................1189 B. Pleading-with-Particularity Requirement of Fed.R.Civ.P. 9(b)............1190 C. Fraudulent Concealment.............................................1191 1." }, { "docid": "8222640", "title": "", "text": "warranty period did not constitute a violation of the act. Honda contends that consistent with the reasoning in Perkins, “courts in California, New York, and Washington, have rejected claims under their state’s consumer protection acts based on claims that are—as here—inconsistent with the terms of the plaintiffs warranty.” (Honda’s Br. at 13). It then discusses cases dealing with each of the acts at issue. 1) California To support their position that Plaintiffs’ claim under the CLRA and/or UCL fails to state a viable claim, Honda relies on Daugherty and Bardin. Daugherty was a putative class action wherein plaintiffs asserted a breach of express warranty claim against an automobile manufacturer. Daugherty v. American Honda Motor Co., 144 Cal.App.4th 824, 51 Cal.Rptr.3d 118 (2006). In that case, the plaintiffs alleged that the manufacturer breached its express warranty by failing to disclose an engine defect that did not cause malfunctions in the automobiles until long after the warranty expired. The court dismissed the express warranty claim under the general rule that an express warranty does not cover repairs made after the applicable time or mileage periods have elapsed. Id. at 830-32, 51 Cal.Rptr.3d 118. The plaintiffs in Daugherty also asserted a claim under the CLRA, alleging that Honda violated the CLRA by concealing and failing to disclose the engine defect and by continuing to market and sell defective vehicles notwithstanding knowledge of the defect. After dismissing the express warranty claim, the court also dismissed the CLRA claim, stating “[w]e agree with the trial court that these allegations do not state a violation of the CLRA.” Id. at 834, 51 Cal.Rptr.3d 118. The court explained as follows: In short, although a claim may be stated under the CLRA in terms of constituting fraudulent omissions, to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose. In Daugherty’s case, no representation is alleged relating to the F22 engine, which functioned as warranted. Accordingly, no claim has been stated. Id. at 835, 51 Cal.Rptr.3d 118. The Daugherty court relied" }, { "docid": "19577489", "title": "", "text": "claim for breach of express warranty on this basis, it does not address Defendant's additional arguments for dismissal of this claim. 3. Breach of Implied Warranty In the Complaint, Plaintiff alleges that NNA impliedly warranted that its CVTs were not inherently defective, were of good and merchantable quality, and were fit for the ordinary purposes for which they were sold. (Compl. ¶ 95.) He asserts that NNA breached the warranty because the vehicles were \"prone to substantial failure and malfunction, pose serious safety concerns,\" and have \"substantially failed and malfunctioned.\" (Id. ¶ 97.) Defendant argues that Plaintiff's claim for breach of implied warranty fails for two reasons. First, it contends that the claim does not allege a defect that manifested within the time and mileage limits of the express warranty. (Def.'s Dismiss Mem. at 12.) Second, NNA asserts that Plaintiff's vehicle was merchantable as a matter of law. (Id. ) An implied warranty of merchantability requires that goods be \"fit for the ordinary purposes for which such goods are used.\" Daigle v. Ford Motor Co. , 713 F.Supp.2d 822, 826 (D. Minn. 2010). An implied warranty of merchantability is breached on a showing that a \" 'product is defective to a normal buyer making ordinary use of the product.' \" Thunander v. Uponor, Inc. , 887 F.Supp.2d 850, 860 (D. Minn. 2012) (quoting Driscoll v. Standard Hardware, Inc. , 785 N.W.2d 805, 816 (Minn. Ct. App. 2010) ). Under Minnesota law, a written implied warranty of merchantability may be excluded or modified by using language that mentions merchantability and is conspicuous. Minn. Stat. § 336.2-316(2). Here, the Warranty mentions merchantability in all capital letters, stating, \"ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE SHALL BE LIMITED TO THE DURATION OF THIS WRITTEN WARRANTY.\" (Wittie Decl., Ex. A (Nissan 2012 Warranty Info. Booklet at 6).) This language is found within a rectangular box under the heading \"LIMITATION OF WARRANTIES AND OTHER WARRANTY TERMS AND STATE LAW RIGHTS,\" and precedes the express warranty terms. (Id. ) In light of this language, Defendant asserts that for Knotts to sufficiently plead" }, { "docid": "9595429", "title": "", "text": "class claims, the Court noted the inherent difficulty of maintaining a class action arising from alleged personal injuries. Dkt. No. 28 at 11-12. On October 30, 2008, Stearns and additional named plaintiffs filed their first amended complaint (“FAC”), amending their previous claims and adding a new defendant (Sleep Train). The FAC also included new claims for relief based upon (1) negligence; (2) violation of the Magnuson-Moss Warranty Act (“MMWA”); (3) unfair competition pursuant to the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code § 17200 et seq.; (4) false advertising pursuant to the California False Advertising Law (“FAL”), Cal. Bus. & Prof.Code § 17500 et seq.; (5) violation of Section 1 of the Sherman Act; (6) violation of California’s Cartwright Act; (7) violation of the California Consumers Legal Remedies Act (“CLRA”), Cal. Civ.Code § 1750; (8) violation of the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c); (9) conspiracy in violation of RICO, 18 U.S.C. § 1962(d); and (10) violation of the Consumer Product Safety Act (“CPSA”), 15 U.S.C. § 2064, et seq. In addition, the claim for breach of express warranty was asserted expressly pursuant to Uniform Commercial Code (“UCC”) § 2-313. The implied warranty claim was bifurcated into separate claims for breach of the implied warranty of merchantability (UCC § 2-314) and breach of the implied warranty of fitness (UCC § 2-315). In total, Plaintiffs asserted seventeen claims for relief, none of which included claims based upon personal injuries. On June 5, 2009, 2009 WL 1635931, the Court granted Defendants’ motion to dismiss with leave to amend in part. Leave to amend was limited expressly to Plaintiffs’ claims based upon negligence, strict product liability, breach of express warranty, and violations of the MMWA and UCL. The Court also granted Defendants’ motion to strike Plaintiffs’ purported class claims. The Order stated clearly that Plaintiffs could “not add any new defendants, plaintiffs or claims for relief without leave of the Court.” Dkt. No. 59 at 29. On July 6, 2009, Plaintiffs filed their second amended complaint (“SAC”), asserting claims for negligence, strict product liability, breach of" } ]

[ { "docid": "13263094", "title": "", "text": "PER CURIAM. Ryan Maeder pleaded guilty to conspiring to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a). He was sentenced to 57 months’ imprisonment, three years’ supervised release, $23,477 in restitution, and a $100 fine. Mr. Maeder’s counsel filed a notice of appeal, but we permitted him to withdraw and appointed substitute counsel. His new lawyer now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a non-frivolous issue for appeal. Because Mr. Maeder declined our invitation to file a response, see Circuit Rule 51(b), and counsel’s Anders brief is facially adequate, we limit our review of the record to the potential issues identified in the brief. See United States, v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). For the reasons set forth below, we direct counsel to either amend his brief or withdraw his motion. The facts presented during Mr. Mae-der’s plea colloquy, which he admitted were true, established the following. Mr. Maeder met with two other men, Lyle Tyson and Corey Rozowski, on August 9, 2001, to plan to rob the Bank of Drum-mond in Barnes, Wisconsin. The following day, Tyson and Rozowski robbed the bank using BB guns Mr. Maeder had given them, although Mr. Maeder was not at the bank during the robbery. Following the robbery, Tyson and Rozowski fled the bank to a cabin owned by Rozowski’s relatives. Mr. Maeder met Tyson and Rozow-ski at the cabin and gave Rozowski a ride home. In his Anders brief, counsel affirmatively represents that the district court committed no errors during its Rule 11 plea colloquy and that Mr. Maeder’s plea was “knowing and voluntary and nothing [in] the record indicates otherwise.” Thus he concludes that any challenge by Mr. Mae-der to his guilty plea on that ground would be frivolous. Our own review of the colloquy has identified two obvious errors. First, the district court failed to specifically tell Mr. Maeder that he was waiving his right to a trial by pleading guilty. Fed.R.Crim.P. 11(c)(4). Second, the district court failed" } ]

[ { "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": "22703688", "title": "", "text": "no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit Rule 109.2(a). This rule, like the Anders case itself, provides only a general explanation of the contours of the court’s and counsel’s obligations in the Anders situation. However, two opinions of the Court of Appeals for the Seventh Circuit, United States v. Tabb, 125 F.3d 583 (7th Cir.1997), and United States v. Wagner, 103 F.3d 551 (7th Cir.1996), have shed new light on the interpretation of Anders. These opinions fill in gaps left by Anders and its early progeny with respect to two critical questions: (1) the responsibilities of counsel in submitting an Anders brief (Tabb); and (2) the duties of the courts of appeals" }, { "docid": "19002601", "title": "", "text": "PER CURIAM. Following his conviction for distributing cocaine base, see 21 U.S.C. § 841(a)(1), Larry McGee helped authorities apprehend his supplier. Consequently, the Government moved under Federal Rule of Criminal Procedure 35(b) for a reduction in Mr. McGee’s 200-month sentence. After finding that Mr. McGee had substantially assisted the Government, the court granted the motion and reduced Mr. McGee’s sentence to 160 months’ imprisonment. Mr. McGee filed a notice of appeal, but his appointed counsel now seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to identify a nonfrivolous basis for appeal. For the reasons set forth in this opinion, we now grant counsel’s motion to withdraw and dismiss this appeal. I BACKGROUND Mr. McGee sold crack cocaine to either an informant or undercover police officers 14 times in 2005. He was charged with distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). Mr. McGee pleaded guilty to the charge. Because of the nature of the offense, as well as prior 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" }, { "docid": "2547746", "title": "", "text": "the parties have briefed this issue, and we have the record before us, we will resolve it. Reiswitz, 941 F.2d at 495. But arguing and resolving the issue here precludes any subsequent challenge under 28 U.S.C. § 2255. Febus contends that his counsel should have asked Ken Eto (a government witness who narrowly survived an assassination attempt in which he sustained gunshot wounds to his head) about his head wounds and whether he was fit to testify. Eto was associated with organized crime in Chicago where he ran the bolita’s Illinois operation until he became an informant for the FBI in 1983 after the assassination attempt. Febus’s counsel cross-examined Eto, but declined to ask him about his gunshot wounds and risk opening the door for the government to inform the jury about his participation in organized crime. That was a reasonable strategy. See Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir.1997). E. Jose Santos Jose Santos’s appellate counsel seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he believes that there are no nonfrivolous issues for appeal. Pursuant to Circuit Rule 51(b), Santos filed a response to counsel’s motion. Because counsel’s Anders brief is adequate on its face, we consider only those issues raised in the brief and Santos’s response. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). And our “duty is merely to determine whether counsel is correct in believing those grounds frivolous.” United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first considers whether Santos could argue that there was insufficient evidence to support Santos’s convictions for conspiracy, in violation of 18 U.S.C. § 371, and for aiding and abetting the bolita’s operation, in violation of 18 U.S.C. § 1955 and § 2. Santos “bears an extremely heavy burden” on this issue, as we will reverse a conviction only if “we determine that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” Vega, 72 F.3d at 513. To establish a violation of § 1955, the" }, { "docid": "23630580", "title": "", "text": "The district court weighed Vallar’s testimony against the government agents’ and concluded that Vallar lacked credibility. We find no clear error in this conclusion. See United States v. Ofcky, 237 F.3d 904, 910 (7th Cir.2001) (affirming the application of an obstruction enhancement “where the trial judge weighed the testimony of the defendant against that of others and determined that the defendant’s testimony lacked credibility.”); see also United States v. Pedigo, 12 F.3d 618, 628-29 (7th Cir.1993). We affirm the district court’s application of the obstruction enhancement. G. Anders Brief in the Case of Tyrail Curry Curry pled guilty to Count One, the conspiracy charge, on September 6, 2006. He admitted to participating in Iniguez’s drug enterprise by assisting in the receipt and distribution of cocaine in Kentucky. The district court sentenced Curry to 210 months of imprisonment, the lowest within-guidelines sentence, and five years of supervised release. Curry’s counsel, a Federal Public Defender in the Central District of Illinois, concludes that Curry’s case is without merit and submits an Anders brief seeking permission to withdraw. 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.," }, { "docid": "22720525", "title": "", "text": "it, how much or to whom they sold, what type they sold, or how many dealers could sell at Jocko’s at any given time. Moreover, the dealers were free to sell drugs elsewhere. Schuh’s participation in the dealing was limited. He was not a regular dealer, although he occasionally steered customers to the dealers and sometimes sold cocaine for the others. There is no evidence that Schuh recruited accomplices, and, although Schuh received cocaine from the dealers, he never claimed a larger share of the fruits of the crime in relation to the dealers. Therefore, because Schuh played no greater role in the offense than any of the other participants, see Must-read, 42 F.3d at 1103, we vacate Schuh’s sentence and remand for resentencing without an adjustment for being an organizer or leader. B. Lisa Nolen and Curtis Lane The attorneys for Nolen and Lane each move to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that there are no non-frivolous grounds for appeal. We invited Nolen 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" }, { "docid": "20655289", "title": "", "text": "for the armed burglary of a dwelling is a violent felony under the ACCA. The district .court, therefore, had no authority to ignore the conviction because of its age or its underlying circumstances. Such considerations are irrelevant in determining predicate offenses under the Act. Athough the sentencing guidelines are discretionary, a district court may not disregard a minimum sentence required by statute. Mr. Moody’s twelve-year sentence is illegal, and it must be corrected. We cannot accept, however, the parties’ invitation that we make that correction ourselves. The Sentencing Reform Act of 1984 removed any discretion that we previously may have had to correct an illegal sentence and compels a remand to the district court for resentencing. We therefore will vacate Mr. Moody’s sentence and remand with instructions to impose a fifteen-year sentence in accordance with 18 U.S.C. § 924(e). B. We now turn to Mr. Moody’s appeal. Athough Mr. Moody filed a notice of ap peal, his newly appointed counsel submits that his appeal is frivolous and therefore moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because the analysis in counsel’s brief appears to be thorough, we limit our review to the subjects that counsel discusses as well as to the matters that Mr. Moody raises in his response opposing counsel’s motion. Mr. Moody asks that we set aside his guilty plea. He maintains that the lawyer representing him at his plea hearing coerced him into pleading guilty by telling him that he would spend the rest of his life in prison if he did not accept the deal offered by the Government. Noting that a plea is voluntary “when it is not induced by threats or misrepresentations and the defendant is made aware of the direct consequences of the plea,” and that there is a presumption that the defendant’s testimony in a plea colloquy is truthful, see United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995) (internal quotation marks omitted), present counsel examines the plea colloquy required by Rule 11 of the Federal Rules of Criminal Procedure. Counsel notes" }, { "docid": "14850544", "title": "", "text": "elect to pursue one sentencing argument while also choosing to forego another, and when the defendant selects as a matter of strategy, he also'waives those arguments he decided not to present.’ ” United States v. Kindle, 453 F.3d 438, 442 (7th Cir.2006) (quoting Jaimes-Jaimes, 406 F.3d at 848). Our duty when considering waiver is to divine from the record an intent to forego an argument, and counsel’s statement, in light of the other circumstances in this case, provides more than a sufficient basis for doing so. We find that Decker waived his challenge to the district court’s drug quantity calculation. III. Saul Garcia — Counsel’s Motion to Withdraw Garcia was another Indianapolis drug dealer who purchased methamphetamine from Baltista on multiple occasions. Following Garcia’s arrest on January 19, 2007, police found a drug ledger showing money owed to Garcia for fronted drugs, as well as cash and two rifles. Coconspirators also testified regarding Garcia’s drug transactions. On September 18, a jury found Garcia guilty of conspiracy to distribute more than 500 grams of methamphetamine; Garcia also had a prior drug-related felony conviction. On December 3, the district court sentenced him to 380 months in prison after finding that he was responsible for fifteen kilograms or more of methamphetamine and enhancing his sentence for possessing a firearm and for obstructing justice. Garcia filed his notice of appeal on December 10. Garcia’s counsel, unable to discern a non-frivolous basis for appeal, moved to withdraw. Counsel supports his motion with a thorough brief filed according to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia did not respond to his counsel’s submission, and we therefore confine our review of the record to the potential issues raised in his counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973 (7th Cir.2002). After reviewing the record and counsel’s well-written Anders brief, we agree that there are no non-frivolous issues for appeal. Counsel first raises the district court’s evidentiary rulings regarding two witnesses, but Garcia forfeited his challenges by failing to object at trial, see United States v." }, { "docid": "22033083", "title": "", "text": "innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” The district judge gave the defendant concurrent sentences of 92 months for the robbery and 60 months for the conspiracy — so effectively a 92-month sentence. Because the defendant doesn’t want to withdraw his guilty plea, the appeal challenges only the sentence. His lawyer advises us that he can find no nonfrivolous ground for appealing from the judgment, and so asks us to let him withdraw from representing the defendant, in accordance with the procedure authorized by Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The defendant disagrees that he has no nonfrivolous ground for appealing. We note parenthetically that the terms “frivolous” and “nonfrivolous” are misleading in this context. Most claims or arguments held to be “frivolous” are not silly or laughable, as the word implies, but simply so clearly blocked by statute, regulation, binding or 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" }, { "docid": "14583957", "title": "", "text": "PER CURIAM. Alan King used stolen social security numbers to poach Hurricane Katrina relief funds, student-loan money, Pell Grant money, and credit at various banks and retailers. King pleaded guilty to stealing government property, 18 U.S.C. § 641, loan fraud, id. § 1014, false representation of social security numbers, 42 U.S.C. § 408(a)(7)(B), and federal student financial aid fraud, 20 U.S.C. § 1097(a). The district court sentenced King to a total of 105 months’ imprisonment, along with five years’ supervised release, $183,845 in restitution, and a $400 special assessment. King filed a notice of appeal; perhaps anticipating our opinion in United States v. Gammicchia, 498 F.3d 467 (7th Cir.2007) (when a criminal appeal is frivolous, the defendant’s attorneys should file an An-ders motion), his appointed counsel moved to withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). King has responded to counsel’s facially adequate brief, see Cir. R. 51(b), so we limit our review to the potential issues identified by counsel and King. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We begin with King’s belated contention that he was not of “sound mind” when he pleaded guilty because he had ingested twice his morning dose of Elavil, a drug used to treat depression and anxiety. But other than saying that the antidepressant elevated his mood, King has not explained how it possibly could have impaired his rational faculties. See, e.g., United States v. Grimes, 173 F.3d 634, 636-37 (7th Cir.1999); United States v. Groll, 992 F.2d 755, 758 n. 2 (7th Cir.1993). Moreover, King has given us no reason to doubt the veracity of his sworn statements that, notwithstanding his ingestion of the drug, he understood the charges against him, the rights that he was relinquishing by pleading guilty, and the consequences of his plea. See Nunez v. United States, 495 F.3d 544, 546 (7th Cir.2007); United States v. Fuller, 15 F.3d 646, 650 & n. 3 (7th Cir.1994). Indeed, only a few minutes after he entered his plea, King delivered" }, { "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": "14850545", "title": "", "text": "also had a prior drug-related felony conviction. On December 3, the district court sentenced him to 380 months in prison after finding that he was responsible for fifteen kilograms or more of methamphetamine and enhancing his sentence for possessing a firearm and for obstructing justice. Garcia filed his notice of appeal on December 10. Garcia’s counsel, unable to discern a non-frivolous basis for appeal, moved to withdraw. Counsel supports his motion with a thorough brief filed according to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia did not respond to his counsel’s submission, and we therefore confine our review of the record to the potential issues raised in his counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973 (7th Cir.2002). After reviewing the record and counsel’s well-written Anders brief, we agree that there are no non-frivolous issues for appeal. Counsel first raises the district court’s evidentiary rulings regarding two witnesses, but Garcia forfeited his challenges by failing to object at trial, see United States v. McMath, 559 F.3d 657, 667 (7th Cir.2009), and we find no plain error in the court’s rulings. Counsel also addresses the sufficiency of the evidence to convict Garcia, but he correctly highlights more than enough evidence from which a reasonable jury could have found Garcia guilty. See Moses, 513 F.3d at 733. Counsel next calls our attention to the denial of Garcia’s requests for a new attorney. The court below held ex parte hearings to determine whether the requests should be granted, applied the proper criteria, and did not abuse its discretion in finding that new counsel was inappropriate. See United States v. Ryals, 512 F.3d 416, 419-20 (7th Cir.2008) (explaining the applicable standard when considering a motion for new counsel); United States v. Best, 426 F.3d 937, 947 (7th Cir.2005) (same). Finally, counsel notes multiple issues regarding Garcia’s sentence. After reviewing each of them, we agree that the district court properly calculated the drug quantity for which Garcia was held responsible and did not err by imposing enhancements for possession of a firearm and" }, { "docid": "22143893", "title": "", "text": "that a verdict following any of the foregoing alternatives, if properly found, would be sustained. But the verdict must be rendered under proper and applicable rules of law. Another point requires discussion. Ordinarily, the remedy to rectify a misconception regarding the significance of a particular fact, such as a particular state of mind, is to request special findings pursuant to the provisions of Rule 23 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Cesario v. United States, 1 Cir., 200 F.2d 232. No such formal request was made in the instant case. However, counsel for appellant repeatedly called the trial court’s attention to this matter, and, as indicated previously, the trial court’s remarks at the time of verdict bore on it. Moreover, counsel for the Government did not raise the point of Rule 23 on this appeal. Therefore, while we believe resort to Rule 23 ordinarily must be made to preserve such an issue on appeal, we also believe that the circumstances of this case are such that it would perpetuate an injustice to deprive appellant of the opportunity to question the propriety of the trial court’s conception of the constituent elements of the offense. The other question tendered by this appeal relates to the exclusion of certain evidence, i. e., that appellant, through his attorney, had negotiated and entered into an understanding and agreement with representatives of the Internal Revenue Service in Portland, Oregon in May, 1955, whereby certain assets were to be sold to pay off Coast Redwood Company’s tax obligations. The District Court took notice of the fact of the negotiations and understanding. It refused to allow the attorney to testify as to the details on the ground that such evidence was immaterial. The trial judge possesses wide latitude in the determination of the relevancy or materiality of evidence and his ruling cannot be reversed in the absence of an abuse of discretion. The evidence offered went to the defendant’s state of mind. It concerned actions taken over three years after the indictment period commenced and its probative value, if any, was slight. We cannot hold" }, { "docid": "22703687", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. I. Donald Wayne Marvin pled guilty to conspiracy, robbery, and the use of a firearm during a crime of violence. Marvin wanted to appeal aspects of his sentencing, but Marvin’s counsel filed an Anders motion, requesting to withdraw from representing him and expressing his belief that there were no nonfrivolous arguments for appeal. After reviewing the brief, we conclude that it is inadequate, and deny counsel’s motion. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court explained the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to withdraw from continued representation on the grounds that there are no nonfrivolous issues to appeal. An-ders struck down a process that allowed courts of appeals to accept a mere assertion by counsel that he or she found the appeal to be “without merit.” Id. at 743, 87 S.Ct. 1396. The Court suggested, however, that if, after a “conscientious examination” of the record, counsel found no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After" }, { "docid": "23571427", "title": "", "text": "PER CURIAM. Immigration officials caught up with Clemente Cano-Rodriguez, a Mexican citizen, while he was serving time for a drug conviction in an Illinois state prison. Unfortunately for Cano-Rodriguez, he had been deported once before, and so upon his release from state prison he was charged in federal court and pleaded guilty to being in the United States without permission. See 8 U.S.C. § 1326(a). Cano-Rodriguez appeals, but his appointed lawyer has moved to withdraw because he cannot discern any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967). Cano-Rodriguez was notified about counsel’s motion, see Cir. R. 51(b), and he responded by requesting the appointment of new counsel. Counsel’s supporting brief is facially adequate, so we limit our review to the potential issues he identifies. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). At sentencing, Cano-Rodriguez argued that the district court should decline to assess him an additional two criminal history points for committing his immigration crime while in prison. See U.S.S.G. § 4Al.l(d). Cano-Rodriguez asserted that DEA agents participated in the investigation that led to his state drug conviction, and so federal authorities should have immediately charged him with violating § 1326(a) instead of waiting for his state sentence to expire. The court rejected this argument, observing that Cano-Rodri-guez had provided no evidence whatsoever that the federal government knew from the moment of his arrest that he was in the country illegally. The court therefore began with a base offense level of 8, see U.S.S.G. § 2L1.2, and added 16 levels because Cano-Rodriguez had been deported after committing a drug trafficking offense for which he received a six-year sentence, see id. § 2L1.2(b)(l)(A). The court then subtracted three levels for acceptance of responsibility, resulting in a total offense level of 21. See id. § 3E1.1. Finally, the court added the two extra criminal history points, yielding a criminal history category of IV and an imprisonment range of 57 to 71 months. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the court sentenced Cano-Rodriguez" }, { "docid": "23216213", "title": "", "text": "F.3d 931, 938 (7th Cir.2006); United States v. Re, 419 F.3d 582, 583 (7th Cir.2005)-and we decline this one as well. It is true that the Paladino process is a limited one in which the district court is confined to the original record, along with arguments from the parties. See United States v. Bonner, 440 F.3d 414, 417 (7th Cir.2006); Paladino, 401 F.3d at 484. But the defendants are free to submit vigorous arguments under the § 3553(a) factors, and if any of those points requires new evidence, counsel can make a proffer to the district court. If the argument is promising enough that the district court is inclined to resentence, then we will remand for full resentencing and any new evidence can be introduced at the new sentencing hearing. D. Collins’s counsel’s motion to withdraw The last matter to be settled is the motion to withdraw filed by Collins’s counsel under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel contends that any appeal would be frivolous. Because his brief is facially adequate, we confine our review to the potential issues that he raises, along with those that Collins himself identifies in a response under Circuit Rule 51(b). United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Collins cooperated with the government and was rewarded with a sentence of half the bottom end of his Guidelines range. He received 180 months’ imprisonment, compared to his co-defendants’ sentences ranging from 240 months to life. Collins’s plea agreement, like Cohn’s, contains a waiver of the right to appeal. But as we noted above, a plea agreement that is entered into involuntarily or as a result of ineffec tive assistance from counsel cannot stand, and the waiver of appeal would fall with the plea agreement. Collins contends in his Rule 51(b) submission that he could raise both of these points in an appeal. Either argument, however, would be frivolous. Collins stated in open court that he understood his rights under Federal Rule of Civil Procedure 11, and that his guilty plea was knowing and voluntary. He" }, { "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": "13183957", "title": "", "text": "1980. After the signing of the documents, the agent gave appellants $45,000 as down payment and lease payments on the automobile and the computer. Finally, the agent, Chira and Everett went to the parking garage to inspect the Rolls Royce, at which time Chira and Everett were arrested. A grand jury indictment was returned charging Chira, Everett, and Intervest Associates, Inc. with conspiracy to defraud the United States by impairing, impeding, and obstructing the IRS in the collection of tax revenue. Legal Impossibility Both appellants assert that their convictions should be reversed on the grounds of legal impossibility. Appellants argue that it was legally impossible for them to impede the collection of taxes because there was no real taxpayer nor any actual tax due, and because the government had knowledge of the scheme. Two responses defeat appellants’ assertions. First, the charge of conspiracy to impede the collection of taxes does not require the filing of a tax return by a real taxpayer. Second, the doctrine of legal impossibility is not available as a defense to a charge of conspiracy in this circuit. A conspiracy to defraud the United States under 18 U.S.C. § 371 need not involve an agreement to defraud the government out of money or property, but only requires an agreement to impede the government’s lawful functions. Section 371 does not require that the government actually be harmed; it reaches “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.” Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966) quoting Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 253, 54 L.Ed. 569 (1910). In the instant case, the purpose of the conspiracy was to impede the lawful function of the IRS, that is, the collection of taxes, and the existence of a real taxpayer is therefore immaterial. Furthermore, this court has rejected the doctrine of legal impossibility as a defense to a charge of conspiracy. Appellants compare their case to Ventimiglia v. United States, 242 F.2d 620 (4th Cir.1957), in which" }, { "docid": "22694768", "title": "", "text": "PER CURIAM. Several months ago, in United States v. Wagner, 103 F.3d 551 (7th Cir.1996), we clarified the procedure we follow when determining whether to accept a motion by a criminal, defendant’s lawyer to withdraw from representing a defendant on appeal because no nonfrivolous issues can be advanced. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our starting point is the Anders brief itself, which we review to see if it is adequate on its face. If it explains the nature of the case and intelligently discusses the issues that a case of the sort might be expected to involve, we will not conduct an independent review of the record to determine whether a more ingenious lawyer might have found additional issues that may not be frivolous. Instead, we confine our scrutiny of the record to the portions that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues she chose to discuss is reasonable and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we will have a sufficient basis for confidence in the lawyer’s competence to forego scrutiny of the rest of the record. Then, if we agree with the brief, we will grant the attorney’s request to withdraw as counsel and dismiss the appeal as meritless. We took this approach because a lawyer submitting an Anders brief is, in essence, offering an expert opinion that the appeal is devoid of merit. If the brief, on its face, is adequate, we think we can comfortably rely on the professional opinion it offers. We are also influenced by a defendant’s response, if any, to the Anders brief which must be served on the defendant. 7th Cir. R. 51(b). And although we do not attach conclusive weight to a defendant’s failure to respond to an Anders brief, it may, in fact, be an acknowledgment that the appeal should be abandoned as hopeless. Wagner at 552. The two eases before" }, { "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": "22640411", "title": "", "text": "liability is incurred, it will be permissible for the corpora tions to deduct from their gross income the amounts credited to such reserves each year, provided that the amounts deductible on account of the reserve shall approximate as nearly as can be determined the actual amounts which experience has demonstrated would be necessary to discharge the liabilities incurred during the year and for the payment of which additions to the reserves were made.” The accrual method of accounting had been regularly employed by Edward Brown & Sons before 1923, but no Return Commission ” account had been set up. Moreover, the method employed by the taxpayer is never conclusive. If in the opinion of the Commissioner it does not clearly reflect the: Income, “ the computation shall be made upon such basis and in such manner,” as will, in his opinion, do so. United States v. Anderson, 269 U.S. 422, 439; Lucas v. American Code Co., 280 U.S. 445, 449; Lucas v. Ox Fibre Brush Co., 281 U.S. 115, 120; compare Williamsport Wire Rope Co. v. United States, 277 U.S. 551; Lucas v. Structural Steel Co., 281 U.S. 264. In assessing the'deficiencies, the. Commissioner required in effect that the taxpayer continue' to follow the method of accounting which had been in use prior to the change made in 1923. To so require was within his administrative discretion; compare Bent v. Commissioner, 56 F. (2d) 99; • Second. The Board of Tax Appeals did not err in refusing to allocate to future years part of the overriding commissions on business written during the tax'able year. Brown urges that the overriding commission is compensation for services rendered throughout the life of the policy; that the compensation to be rendered in later years cannot be considered as earned until the required services have beenperformed; and that the Revenue Acts con template that where books are kept on the accrual basis, the income shall be accounted for as it is earned. He suggests, .therefore, as an alternative method of ascertaining the income, that the commissions on each year's writing be prorated over the life" } ]

[ { "docid": "5830595", "title": "", "text": "Plaintiff was an accrual method taxpayer. Under the accrual method, reporting of income is generally governed by the “all events” test first articulated in United States v. Anderson, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347 (1926). In Anderson, the Supreme Court held that a tax payment for the sale of munitions was a deductible expense only in the year the sale occurred and not the following year, when the tax was paid. The taxpayer in Anderson contended the tax could not be accrued as an expense prior to its assessment and due date. The Court, rejecting that argument, found “that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it.” Anderson, 269 U.S. at 441, 46 S.Ct. at 134. In Spring City Foundry Co. v. Commissioner, 292 U.S. 182, 184, 54 S.Ct. 644, 644-645, 78 L.Ed. 1200 (1934), the Court extended this rationale to the accrual of income, “it is the right to receive and not the actual receipt that determines the inclusion of the amount in gross income.” The all-events test has been adopted by regulation for the accrual of income, 26 C.F.R. § 1.451-l(a) (1996) (“income is includible [sic] in gross income when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy”), and expenses, 26 C.F.R. § 1.446-l(c)(l)(ii) (“[u]nder such a method, a liability is incurred, and generally is taken into account for Federal income tax purposes, in the taxable year in which all the events have occurred that establish the fact of the liability, the amount of the liability can be determined with reasonable accuracy, and eco nomie performance has occurred with respect to the liability.”). Defendant contends that plaintiff must report income from the WEPCO indemnification agreement in the tax years to which the income relates (1976 and 1977). Plaintiff argues that income from the indemnification did not accrue until 1984 because all of the events fixing the right to" }, { "docid": "16038274", "title": "", "text": "with reasonable accuracy, and that liability exists “if there is an obligation to perform an act and the cost of performance can be measured in money.” Ibid. The liability here was not contingent upon the time of payment or the identity of the jackpot winner. Rather, it was fixed by the Commission’s regulation. The “contrary conclusion” of the Ninth Circuit in Nightingale was noted. Ibid. Because of the clear conflict between the two Circuits, we granted certiorari. 474 U.S. -, 106 S.Ct. 522, 88 L.Ed.2d 455 (1985). II Section 162(a) of the Internal Revenue. Code allows a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Section 446(a) provides that taxable income “shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.” Under the “cash receipts and disbursements method,” specifically recognized by § 446(c)(1), a taxpayer is entitled to deduct business expenses only in the year in which they are paid. Treas.Reg. §§ 1.446-1(c)(1)® and 1.461-l(a)(l). The Code also permits a taxpayer to compute taxable income by the employment of “an accrual method.” § 446(c)(2). An accrual-method taxpayer is entitled to deduct an expense in the year in which it is “incurred,” § 162(a), regardless of when it is actually paid. For a number of years, the standard for determining when an expense is to be regarded as “incurred” for federal income tax purposes has been the “all events” test prescribed by the Regulations. See Treas. Reg. § 1.446-l(c)(l)(ii) (accruals in general); § 1.451-l(a) (accrual of income); and § 1.461-l(a)(2) (accrual of deductions). This test appears to have had its origin in a single phrase that appears in this Court’s opinion in United States v. Anderson, 269 U.S. 422, 441, 46 S.Ct. 131, 134, 70 L.Ed. 347 (1926) (“it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it”). Since" }, { "docid": "20077211", "title": "", "text": "had only a contingent liability for additional costs. The Commissioner therefore limited purchases to the $249,995,543 actually paid by Molsen & Co. in 1977 and increased the company’s taxable income by $1,099,465. There is no evidence that the Commissioner changed the company’s method of valuing opening and ending inventories at market. OPINION Section 446 provides that taxable income shall be computed under the method of accounting regularly used by the taxpayer in computing his income and keeping his books, but if no method has been regularly used by the taxpayer or if \"the method used does not clearly reflect income,” the computation shall be made under such method as, in the opinion of the Commissioner, does clearly reflect income. The term \"method of accounting” includes not only the taxpayer’s overall method but also the accounting treatment of any item. Sec. 1.446-l(a)(l), Income Tax Regs. Molsen & Co., a cotton merchant, accounts for its taxable income on an accrual basis and employs a taxable year ending December 31. In accordance with generally accepted accounting principles and industry-wide practice, the company has historically and consistently accounted for its cost of goods sold by valuing ending cotton inventory at market and accruing to the cost of purchases the additional amount that would be payable by it under its unfixed, delivered, on-call purchase contracts were the cost of such purchases fixed on December 31. Since 1926, the Commissioner has expressly permitted cotton merchants and other dealers in commodities to value their ending inventories at market value even though market value may exceed the inventories’ actual cost. See Rev. Rul. 74-227,1974-1 C.B. 119, which updated, restated, and superseded S.M. 5693, V-2 C.B. 20 (1926). However, the Commissioner has recently ruled that cotton merchants may not include the additional amounts (if any) payable under on-call purchase contracts in the cost of cotton purchases unless the cotton producers have called the prices during the taxable year. Rev. Rui. 81-298, 1981-2 C.B. H4 Thg primary issue for decision is therefore whether Molsen & Co.’s method of accounting for its unfixed, delivered, on-call purchases clearly reflects its income so" }, { "docid": "15206763", "title": "", "text": "of liability and the amount thereof can be determined with reasonable accuracy, and that liability exists “if there is an obligation to perform an act and the cost of performance can be measured in money.” Ibid. The liability here was not contingent upon the time of payment or the identity of the jackpot winner. Rather, it was fixed by the Commission’s regulation. The “contrary conclusion” of the Ninth Circuit in Nightingale was noted. 760 F. 2d, at 1293. Because of the clear conflict between the two Circuits, we granted certiorari. 474 U. S. 1004 (1985). II Section 162(a) of the Internal Revenue Code allows a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Section 446(a) provides that taxable income “shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.” Under the “cash receipts and disbursements method,” specifically recognized by § 446(c)(1), a taxpayer is entitled to deduct business expenses only in the year in which they are paid. Treas. Reg. §§ 1.446-l(c)(l)(i) and 1.461-l(a)(l), 26 CFR §§ 1.446-l(c)(l)(i), 1.461-l(a)(l) (1985). The Code also permits a taxpayer to compute taxable income by the employment of “an accrual method.” § 446(c)(2). An accrual-method taxpayer is entitled to deduct an expense in the year in which it is “incurred,” § 162(a), regardless of when it is actually paid. For a number of years, the standard for determining when an expense is to be regarded as “incurred” for federal income tax purposes has been the “all events” test prescribed by the Regulations. See Treas. Reg. § 1.446 — l(c)(l)(ii) (accruals in general); § 1.451-l(a) (accrual of income); and § 1.461-l(a)(2) (accrual of deductions). This test appears to have had its origin in a single phrase that appears in this Court’s opinion in United States v. Anderson, 269 U. S. 422, 441 (1926) (“[I]t is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax" }, { "docid": "20077222", "title": "", "text": "are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. * * * [Sec. 1.446 — l(c)(l)(ii), Income Tax Regs.] This description of the accrual method is repeated in the regulations under section 451, insofar as it pertains to the accrual of income, and in the regulations under section 461, insofar as it pertains to the accrual of deductible expenses. In our view, the Commissioner’s reliance, in part, on section 1.461-l(a)(2) of the regulations is misplaced. Although purchases are an \"expense” in the colloquial sense, it is well settled that they are not a \"deduction” within the meaning of section 461 and that they are not subject to the rules governing deductions under such section. Purchases are taken into account in computing the cost of goods sold, which is an offset, or exclusion, employed in the computation of gross profit and gross income (section 1.61-3(a), Income Tax Regs.); whereas, throughout the Code, the term \"deduction” is used to refer to amounts subtracted from gross income to arrive at taxable income. Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358, 361 (9th Cir. 1967); B.C. Cook & Sons, Inc. v. Commissioner, 65 T.C. 422, 428-432 (1975), affd. per curiam 584 F.2d 53 (5th Cir. 1978), and cases cited therein; National Home Products, Inc. v. Commissioner, 71 T.C. 501 (1979). Such distinction was recognized in Max Sobel Wholesale Liquors v. Commissioner, 69 T.C. 477 (1977), affd. 630 F.2d 670 (9th Cir. 1980). In that case, the taxpayer, in violation of State law, made sales of liquor and wine to selected customers at posted prices with the understanding that such customers would receive a credit to be used for future purchases or an additional bottle of each case purchased. As the additional bottles were delivered, their cost was charged to the cost of goods sold. Section 162(c)(2) disallows a deduction for an \"illegal bribe, illegal kickback, or other illegal payment” otherwise deductible under section 162(a). However," }, { "docid": "20077219", "title": "", "text": "contracts declines as the market value of the cotton inventory declines. If the market price were to fall below the amount which Molsen & Co. advanced as a provisional payment under its unfixed, on-call purchases, the amount potentially receivable by the company from the sellers (assuming, as under most of the Memphis territory contracts, that the provisional payment was not a guaranteed minimum price) would be offset against the loss recognized on the inventory. At the end of 1977, the market and futures prices of cotton were rising, and Molsen & Co. accrued $1,099,464.58 to the cost of purchases as the amount that it would have owed on December 31 had the sellers under the Memphis territory and Texas contracts, which were unfixed, called their prices on that day. As it turned out, the market continued to rise, and Molsen & Co. eventually paid about $1,839,633.70 in 1978 in final settlement of the contracts. The Commissioner contends that purchases are an expense subject to the \"all events” test of sections 1.446 — l(c)(l)(ii) and 1.461-l(a)(2) of the regulations, which govern the timing of deductions under the accrual method. Applying such test to the unfixed, delivered, on-call purchase contracts involved here, the Commissioner argues that the provisional payments advanced in 1977 are includable in purchases but that no yearend accrual may be made for the estimated additional amounts due under the contracts because Molsen & Co.’s liability for such additional amounts was contingent until the time that the sellers actually called the price. The petitioners, on the other hand, contend that the Commissioner acted arbitrarily and abused his discretion in disallowing the year-end accrual for the unfixed, on-call purchases because such accrual conformed to industry-wide practice and to generally accepted accounting principles, was consistently applied year after year, and, most importantly, was necessary in order to clearly reflect the company’s income. The petitioners present a variety of arguments, but their basic position is that the Commissioner, having recognized the need of cotton merchants for, and the practice of, valuing ending inventory at market, was arbitrary in rejecting their companion practice of" }, { "docid": "20077220", "title": "", "text": "of the regulations, which govern the timing of deductions under the accrual method. Applying such test to the unfixed, delivered, on-call purchase contracts involved here, the Commissioner argues that the provisional payments advanced in 1977 are includable in purchases but that no yearend accrual may be made for the estimated additional amounts due under the contracts because Molsen & Co.’s liability for such additional amounts was contingent until the time that the sellers actually called the price. The petitioners, on the other hand, contend that the Commissioner acted arbitrarily and abused his discretion in disallowing the year-end accrual for the unfixed, on-call purchases because such accrual conformed to industry-wide practice and to generally accepted accounting principles, was consistently applied year after year, and, most importantly, was necessary in order to clearly reflect the company’s income. The petitioners present a variety of arguments, but their basic position is that the Commissioner, having recognized the need of cotton merchants for, and the practice of, valuing ending inventory at market, was arbitrary in rejecting their companion practice of bringing unfixed, delivered, on-call purchases to market; to value their inventories at market in any event and to deny them the opportunity to bring their purchase costs to market results, they maintain, in a substantial distortion of income. As stated above, if a taxpayer uses inventories, purchases must be accounted for under the accrual method in order to accurately reflect the cost of goods sold during the year. Sec. 1.446-l(c)(2), Income Tax Regs. The all events test relied upon by the Commissioner has long been a cornerstone of the accrual method of accounting for Federal income tax purposes. See, e.g., Brown v. Helvering, 291 U.S. 193 (1934); Lucas v. American Code Co., 280 U.S. 445 (1930); United States v. Anderson, 269 U.S. 422 (1926). The regulations describe the accrual method as follows: Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions" }, { "docid": "16038275", "title": "", "text": "are paid. Treas.Reg. §§ 1.446-1(c)(1)® and 1.461-l(a)(l). The Code also permits a taxpayer to compute taxable income by the employment of “an accrual method.” § 446(c)(2). An accrual-method taxpayer is entitled to deduct an expense in the year in which it is “incurred,” § 162(a), regardless of when it is actually paid. For a number of years, the standard for determining when an expense is to be regarded as “incurred” for federal income tax purposes has been the “all events” test prescribed by the Regulations. See Treas. Reg. § 1.446-l(c)(l)(ii) (accruals in general); § 1.451-l(a) (accrual of income); and § 1.461-l(a)(2) (accrual of deductions). This test appears to have had its origin in a single phrase that appears in this Court’s opinion in United States v. Anderson, 269 U.S. 422, 441, 46 S.Ct. 131, 134, 70 L.Ed. 347 (1926) (“it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it”). Since then, the Court has described the “all events” test “established” in Anderson, as “the ‘touchstone’ for determining the year in which an item of deduction accrues,” and as “a fundamental principle of tax accounting.” United States v. Consolidated Edison Co., 366 U.S. 380, 385, 81 S.Ct. 1326, 1329, 6 L.Ed.2d 356 (1961) (citing cases). Under the Regulations, the “all events” test has two elements, each of which must be satisfied before accrual of an expense is proper. First, all the events must have ' occurred which establish the fact of the liability. Second, the amount must be capable of being determined “with reasonable accuracy.” Treas.Reg. § 1.446—l(c)(l)(ii). This case concerns only the first element, since the parties agree that the second is fully satisfied. Ill The Court’s cases have emphasized that “a liability does not accrue as long as it remains contingent.” Brown v. Helvering, 291 U.S. 193, 200, 54 S.Ct. 356, 359, 78 L.Ed. 725 (1934); accord, Dixie Pine Co. v. Commissioner, 320 U.S. 516, 519, 64 S.Ct. 364, 365, 88 L.Ed. 270 (1944)." }, { "docid": "13247537", "title": "", "text": "method because it disregards the all events test. Treasury Regulation 26 C.F.R. § 1.446-l(c)(ii) provides: (ii) Accrual method. Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. The method used by the taxpayer in determining when income is to be accounted for will be acceptable if it accords with generally accepted accounting principles, is consistently used by the taxpayer from year to year, and is consistent with the Income Tax Regulations. For example, under an accrual method, a taxpayer engaged in manufacturing may account for the sale of an item when the item is shipped, when the item is delivered, when the item is accepted, or when title to the item passes to the purchaser, whether or not billed, depending upon the method regularly employed in keeping the taxpayer’s books; however, see § 1.451-5 relating to advance payments. The determination of when an item is shipped, delivered or accepted, or when title passes, does not depend upon when any other item in the contract is shipped, delivered or accepted, or when title passes. The taxpayer argues that the all events test requires that interest be computed in accordance with the parties’ agreement. In the present case, the note calls for amortization of precomputed interest in accordance with the Rule of 78. However, the agreement is between related parties and the Rule of 78 does not reflect economic reality. Conversely, economic accrual precisely reflects the cost of borrowing per period. Economic accrual complies with the all events test. It is a traditional accrual method within the meaning of section 446(c). Taxpayers point out that in the event of prepayment, a credit against the interest element of the note is determined in accordance" }, { "docid": "15206764", "title": "", "text": "expenses only in the year in which they are paid. Treas. Reg. §§ 1.446-l(c)(l)(i) and 1.461-l(a)(l), 26 CFR §§ 1.446-l(c)(l)(i), 1.461-l(a)(l) (1985). The Code also permits a taxpayer to compute taxable income by the employment of “an accrual method.” § 446(c)(2). An accrual-method taxpayer is entitled to deduct an expense in the year in which it is “incurred,” § 162(a), regardless of when it is actually paid. For a number of years, the standard for determining when an expense is to be regarded as “incurred” for federal income tax purposes has been the “all events” test prescribed by the Regulations. See Treas. Reg. § 1.446 — l(c)(l)(ii) (accruals in general); § 1.451-l(a) (accrual of income); and § 1.461-l(a)(2) (accrual of deductions). This test appears to have had its origin in a single phrase that appears in this Court’s opinion in United States v. Anderson, 269 U. S. 422, 441 (1926) (“[I]t is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it”). Since then, the Court has described the “all events” test “established” in Anderson as “the ‘touchstone’ for determining the year in which an item of deduction accrues,” and as “a fundamental principle of tax accounting.” United States v. Consolidated Edison Co. of New York, 366 U. S. 380, 385 (1961) (citing cases). Under the Regulations, the “all events” test has two elements, each of which must be satisfied before accrual of an expense is proper. First, all the events must have occurred which establish the fact of the liability. Second, the amount must be capable of being determined “with reasonable accuracy.” Treas. Reg. § 1.446-l(c)(l)(ii). This case concerns only the first element, since the parties agree that the second is fully satisfied. Ill The Court’s cases have emphasized that “a liability does not accrue as long as it remains contingent.” Brown v. Helvering, 291 U. S. 193, 200 (1934); accord, Dixie Pine Products Co. v. Commissioner, 320 U. S. 516, 519 (1944). Thus, to satisfy" }, { "docid": "14673068", "title": "", "text": "(1959). See also Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 532 (1979); Lucas & American Code Co. v. Commissioner, 280 U.S. 445, 449 (1930), revg. 30 F.2d 222 (2d Cir. 1929). Ordinarily, a method of accounting which reflects a consistent application of generally accepted accounting principles will be regarded as clearly reflective of income. Sec. 1.446-l(a)(2), Income Tax Regs.; but see Thor Power Tool Co. v. Commissioner, supra at 539-540. Respondent’s broad authority to determine whether a taxpayer’s accounting method clearly reflects income is limited, in that he may not reject, as not providing a clear reflection of income, a method of accounting employed by the taxpayer which is specifically authorized in the Code or regulations and has been applied on a consistent basis. Orange & Rockland Utilities v. Commissioner, 86 T.C. 199, 215 (1986). We now examine the facts of this particular case in light of this statutory background. Petitioner utilizes the calendar year as its accounting period and has employed an accrual method of accounting for both tax and financial accounting purposes. When an accrual method of accounting is utilized, an item of income is included in the taxpayer’s gross income for the accounting period during which all the events have occurred which fix the taxpayer’s right to receive the item of income, and the amount thereof can be determined with reasonable accuracy. Sec. 1.451-l(a), sec. 1.446-l(c)(l)(ii), Income Tax Regs.; Spring City Foundry Co. v. Commissioner, 292 U.S. 182, 184-185 (1934). Petitioner contends that, as regards Valentine merchandise shipped prior to yearend, this “all events” test is not satisfied until January 1 of the following year when title to the merchandise and risk of loss pass to the customer. Respondent argues that the all events test is satisfied, at the very latest, at midnight on December 31 of the year in which the merchandise was shipped. We agree with petitioner. At what point in time a sale takes place is to be determined from the totality of the circumstances. While no single factor is controlling, passage of title is perhaps the most significant factor to be" }, { "docid": "2530578", "title": "", "text": "as it pertains to the accrual of income, and in the regulations under section 461, insofar as it pertains to the accrual of deductible expenses. This so-called “all events” test has long been recognized as a cornerstone of the accrual method of accounting for Federal income tax purposes. See, e.g., Brown v. Helvering, 291 U.S. 193 (1934); Lucas v. American Code Co., 280 U.S. 445 (1930); United States v. Anderson, 269 U.S. 422 (1926). Section 451(a) and section 1.451-l(a), Income Tax Regs., state the general rule that any item of gross income shall be included in gross income for the year in which it is received by the taxpayer, unless, under an acceptable accounting method, it may be properly accounted for in some other period. An exception to this general rule exists for income from long-term contracts. ^ Section 1.451-3(b), Income Tax Regs., provides that, in general, the term “long-term contract” includes a manufacturing contract which is not completed within the taxable year in which it is entered into. However, a manufacturing contract constitutes a long-term contract only if it requires the production of items not normally carried in the finished goods inventory of the taxpayer or items which normally require more than 12 calendar months to complete. Sec. 1.451-3(b)(l)(ii), Income Tax Regs. Income from long-term contracts may be included in gross income in accordance with either of two long-term contract methods: (1) The completed contract method, under which all income and related expenses are deferred until completion of the contract, and (2) the percentage of completion method, under which the income from a contract is reported in proportion to, the percentage of the work that has been completed by the end of the taxable year. In addition, the taxpayer may report such income under any other method which clearly reflects income. Whichever method is chosen, it must generally be applied consistently to all of a taxpayer’s contracts within the same trade or business. Sec. 1.451-3(a)(l), Income Tax Regs. Under the percentage of completion method, the income for the year is that proportion of the gross contract price corresponding to" }, { "docid": "10414126", "title": "", "text": "comports with generally accepted accounting principles, is consistently used by the taxpayer from year to year, and is consistent with the regulations. Sec. 1.446-1(c)(1)(ii), Income Tax Regs. The cycle meter reading method of accounting is in accord with generally accepted accounting principles and is predominate in use within the utilities industry. See Public Service Co. of New Hampshire v. Commissioner, supra at 456; Commissioner v. Idaho Power Co., 418 U.S. 1, 15 (1974); Madison Gas & Electric Co. v. Commissioner, 72 T.C. 521, 556 (1979), affd. 633 F.2d 512 (7th Cir. 1980). It has long been considered a generally accepted accounting principle for utilities to accrue revenues based on either cycle meter readings or bills rendered basis with no accounting recognition of unbilled revenue, and certified public accountants issue unqualified financial statements prepared so as to accrue revenue when meters are read or the consumer is billed. Financial statements which reflect unbilled revenue also are prepared in accordance with generally accepted accounting principles. Petitioners have consistently used the cycle meter reading method of ac counting for tax purposes from incorporation over 50 years ago through the tax years in issue and for financial statement purposes from incorporation through the year ended December 31, 1969. The issue as to whether the cycle meter reading method of accounting is a permissible method of accounting must focus upon the determination as to whether such method is consistent with the regulations. Section 1.446(c)(l)(ii), Income Tax Regs., states that “Generally under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. “Accordingly, the cycle meter reading method of accounting which operates to defer unbilled December revenue, will be a permissible method of accrual accounting within section 446(c)(2) if all events which fix petitioners’ right to receive such unbilled revenue have not occurred as of December 31 of each year in issue or the amount thereof cannot be determined with reasonable accuracy. Sec. 1.446-l(c)(l)(ii), Income Tax Regs. Respondent asserts that" }, { "docid": "10409062", "title": "", "text": "of the Commissioner, it clearly reflects income. A method of accounting which reflects the consistent application of generally accepted accounting principles in a particular trade or business in accordance with accepted conditions of practices in that trade or business will ordinarily be regarded as clearly reflecting income, provided all items of gross income and expense are treated consistently from year to year. (c) Permissible methods — (1) In general. Subject to the provisions of paragraphs (a) and (b) of this section, a taxpayer may compute his taxable income under any of the following methods of accounting: (ii) Accrual method. Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. The method used by the taxpayer in determining when income is to be accounted for will be acceptable if it accords with generally accepted accounting principles, is consistently used by the taxpayer from year to year, and is consistent with the Income Tax Regulations. For example, a taxpayer engaged in a manufacturing business may account for sales of his product when the goods are shipped, when the product is delivered or accepted, or when title to the goods passes to the customer, whether or not billed, depending upon the method regularly employed in keeping his books. Sec. 1.451-5, Income Tax Regs., provides in relevant part as follows: Sec. 1.451-5 Advance payments for goods and long-term contracts. (a) Advance payment defined. (1) For purposes of this section, the term “advance payment” means any amount which is received in a taxable year by a taxpayer using an accrual method of accounting for purchases and sales * * * pursuant to, and to be applied against, an agreement: (1) For the sale or other disposition in" }, { "docid": "2530576", "title": "", "text": "1120. “[T]he Commissioner has always recognized * * * that the cost of goods sold must be deducted from gross receipts in order to arrive at gross income.” Sullenger v. Commissioner, 11 T.C. 1076, 1077 (1948). The cost of goods sold during a year is determined by subtracting inventory on hand at the end of the year from the sum of the inventory on hand at the beginning of the year and the cost of purchases. See Schedule A, Form 1120. The use of inventories is a key feature of the accrual method of accounting. Inventories are intended to insure a clear reflection of the year’s income by matching sales during the taxable year with the costs attributable to those sales; costs attributable to inventory remaining on hand at the end of the year are not expensed in the year incurred but are, in effect, deferred until the year in which such inventory is sold. See Photo-Sonics, Inc. v. Commissioner, 357 F.2d 656, 657-658 (9th Cir. 1966), affg. 42 T.C. 926 (1964); All-Steel Equipment Inc. v. Commissioner, 54 T.C. 1749, 1751 (1970), affd. per curiam on this issue 467 F.2d 1184 (7th Cir. 1972). Where inventories are employed, purchases and sales must be computed on the accrual method (unless another method is authorized by the Commissioner) in order to avoid the distortion of income. Sec. 1.446-l(c)(2), Income Tax Regs.; Stoller v. United States, 162 Ct. Cl. 839, 845, 320 F.2d 310, 343 (1963). Section 1.446-l(c)(l)(ii), Income Tax Regs., describes the accrual method as follows: Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. * * * This description of the accrual method is repeated in the regulations under section 451, insofar" }, { "docid": "20077221", "title": "", "text": "bringing unfixed, delivered, on-call purchases to market; to value their inventories at market in any event and to deny them the opportunity to bring their purchase costs to market results, they maintain, in a substantial distortion of income. As stated above, if a taxpayer uses inventories, purchases must be accounted for under the accrual method in order to accurately reflect the cost of goods sold during the year. Sec. 1.446-l(c)(2), Income Tax Regs. The all events test relied upon by the Commissioner has long been a cornerstone of the accrual method of accounting for Federal income tax purposes. See, e.g., Brown v. Helvering, 291 U.S. 193 (1934); Lucas v. American Code Co., 280 U.S. 445 (1930); United States v. Anderson, 269 U.S. 422 (1926). The regulations describe the accrual method as follows: Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. * * * [Sec. 1.446 — l(c)(l)(ii), Income Tax Regs.] This description of the accrual method is repeated in the regulations under section 451, insofar as it pertains to the accrual of income, and in the regulations under section 461, insofar as it pertains to the accrual of deductible expenses. In our view, the Commissioner’s reliance, in part, on section 1.461-l(a)(2) of the regulations is misplaced. Although purchases are an \"expense” in the colloquial sense, it is well settled that they are not a \"deduction” within the meaning of section 461 and that they are not subject to the rules governing deductions under such section. Purchases are taken into account in computing the cost of goods sold, which is an offset, or exclusion, employed in the computation of gross profit and gross income (section 1.61-3(a), Income Tax Regs.); whereas, throughout" }, { "docid": "20183293", "title": "", "text": "computed by reference to a booklet showing the “total amount of the contract,” the amount of the monthly payments, and the total finance charge Itself, which charge was based on the number of months over which the purchase price was to be paid. SBC. 446. GENERAL RULE FOR METHODS OP ACCOUNTING. (a) General Rule. — Taxable Income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his Income in keeping his books. (b) Exceptions. — If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect Income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income. (c) Permissible Methods. — Subject to the provisions of subsections (a) and (b), a taxpayer may compute taxable income under any of the following methods of accounting— (2) an accrual method; SEC. 45,1. GENERAL RULE FOR TAXABLE YEAR OF INCLUSION. (a) Genheal Rule. — The amount of any item of gross income shall be included, in the gross income for the taxable year in which received by the taxpayer, unless, under the method of accounting usedl in computing taxable income, such amount is to be properly accounted for as of a different period. Sec. 1.446-1, Income Tax Regs:, provides : Sec. 1.446-1 General rule for methods of accounting. (c) Permissible methods. — (1) In general. Subject to the provisions of paragraphs (a) and, (b) of this section, a taxpayer may compute his taxable income under any of the following methods of accounting: ******* (il) Accrual method. Generally, under an accrual method1, income is to be included for the taxable year when all the events have occurred which fix the right to receive such Income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred, which establish the fact of the liability giving rise to such deduction and the amount thereof can be" }, { "docid": "20077210", "title": "", "text": "31, 1977, as determined in accordance with the contract. The average amount due was 880 points, or 8.8 cents, per pound. By multiplying 8.8 cents by 10,342,500 pounds (the approximate weight of 20,685 bales of Memphis territory cotton ), the company determined that it would have owed $910,140 more if the sellers had fixed their prices on December 31, 1977. All of the sellers under the Texas and Memphis territory contracts exercised their call rights and fixed their prices by June 23,1978; Molsen & Co. paid approximately $1,839,633.70 in 1978 in final settlement of the Texas and Memphis territory contracts. The petitioners reported their distributive shares of Molsen & Co.’s reported taxable income on their Federal income tax returns for 1977. In his notices of deficiency, the Commissioner determined that Molsen & Co. could not bring its unfixed, delivered, on-call purchases to market on December 31, 1977, by accruing $1,099,465 to purchases in computing its cost of goods sold, because, on December 31, 1977, such purchase contracts were open-ended contracts under which Molsen & Co. had only a contingent liability for additional costs. The Commissioner therefore limited purchases to the $249,995,543 actually paid by Molsen & Co. in 1977 and increased the company’s taxable income by $1,099,465. There is no evidence that the Commissioner changed the company’s method of valuing opening and ending inventories at market. OPINION Section 446 provides that taxable income shall be computed under the method of accounting regularly used by the taxpayer in computing his income and keeping his books, but if no method has been regularly used by the taxpayer or if \"the method used does not clearly reflect income,” the computation shall be made under such method as, in the opinion of the Commissioner, does clearly reflect income. The term \"method of accounting” includes not only the taxpayer’s overall method but also the accounting treatment of any item. Sec. 1.446-l(a)(l), Income Tax Regs. Molsen & Co., a cotton merchant, accounts for its taxable income on an accrual basis and employs a taxable year ending December 31. In accordance with generally accepted accounting principles and" }, { "docid": "2530577", "title": "", "text": "v. Commissioner, 54 T.C. 1749, 1751 (1970), affd. per curiam on this issue 467 F.2d 1184 (7th Cir. 1972). Where inventories are employed, purchases and sales must be computed on the accrual method (unless another method is authorized by the Commissioner) in order to avoid the distortion of income. Sec. 1.446-l(c)(2), Income Tax Regs.; Stoller v. United States, 162 Ct. Cl. 839, 845, 320 F.2d 310, 343 (1963). Section 1.446-l(c)(l)(ii), Income Tax Regs., describes the accrual method as follows: Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. * * * This description of the accrual method is repeated in the regulations under section 451, insofar as it pertains to the accrual of income, and in the regulations under section 461, insofar as it pertains to the accrual of deductible expenses. This so-called “all events” test has long been recognized as a cornerstone of the accrual method of accounting for Federal income tax purposes. See, e.g., Brown v. Helvering, 291 U.S. 193 (1934); Lucas v. American Code Co., 280 U.S. 445 (1930); United States v. Anderson, 269 U.S. 422 (1926). Section 451(a) and section 1.451-l(a), Income Tax Regs., state the general rule that any item of gross income shall be included in gross income for the year in which it is received by the taxpayer, unless, under an acceptable accounting method, it may be properly accounted for in some other period. An exception to this general rule exists for income from long-term contracts. ^ Section 1.451-3(b), Income Tax Regs., provides that, in general, the term “long-term contract” includes a manufacturing contract which is not completed within the taxable year in which it is entered into. However, a manufacturing contract constitutes a" }, { "docid": "10414127", "title": "", "text": "for tax purposes from incorporation over 50 years ago through the tax years in issue and for financial statement purposes from incorporation through the year ended December 31, 1969. The issue as to whether the cycle meter reading method of accounting is a permissible method of accounting must focus upon the determination as to whether such method is consistent with the regulations. Section 1.446(c)(l)(ii), Income Tax Regs., states that “Generally under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. “Accordingly, the cycle meter reading method of accounting which operates to defer unbilled December revenue, will be a permissible method of accrual accounting within section 446(c)(2) if all events which fix petitioners’ right to receive such unbilled revenue have not occurred as of December 31 of each year in issue or the amount thereof cannot be determined with reasonable accuracy. Sec. 1.446-l(c)(l)(ii), Income Tax Regs. Respondent asserts that unbilled December revenue is properly accruable as of December 31 of each year in issue and that the cycle meter reading method of accounting is not specifically authorized by the Internal Revenue Code on the regulations thereunder. Accordingly, respondent posits that the cycle meter reading method of accounting is a variation or combination of an accrual method of accounting within the meaning of section 446(c)(4) and that respondent’s imposition of the conformity requirement in order to insure the clear reflection of income is a proper exercise of respondent’s authority under section 1.446-l(c)(2)(ii), Income Tax Regs. Respondent asserts that the delivery of utility services after the last cycle meter reading date in December fixed petitioners’ right to receive unbilled revenue accrued for financial statement purposes as of December 31 of each year in issue, and respondent cites Bay State Gas Co. v. Commissioner, supra, secs. 1.446-1(c)(1)(ii) and 1.471-1, Income Tax Regs., and City Gas Co. of Florida v. Commissioner, T.C. Memo. 1984-44, to support his contention. Respondent relies on the opinion of the Court of Appeals" } ]

[ { "docid": "23582225", "title": "", "text": "Accardi v. United States, 5 Cir., 1958, 257 F.2d 168, certiorari denied 358 U.S. 883, 79 S.Ct. 124, 3 L.Ed.2d 112; Coronado v. United States, 5 Cir., 1959, 266 F.2d 719. In determining if there has been entrapment as a matter of law this Court has considered not only the predisposition of the accused but has weighed also the conduct of the government agents. Accardi v. United States, supra. In the instant case we cannot find entrapment as a matter of law. There was sufficient evidence of the predisposition (character and general intention of the accused) to submit the case to the jury. Thus, there was evidence that Washington had made prior sales to narcotics addicts. He showed no hesitancy in negotiating a sale of heroin immediately upon being introduced to Robinson. He was willing to arrange a sale of heroin over the telephone. And this second sale was a sale of heroin in Washington’s possession, not of heroin he was 'to obtain. Lloyd Washington complained that he was not getting enough business from Robinson and Booker Washington; he objected to their buying $150 of heroin from another source when he could handle an order for this amount. Lloyd Washington was eager, not reluctant. He came in his own car to meet Booker Washington and Robinson. He jumped at the chance of selling more heroin than he was asked to sell when he heard that Robinson had more money; pushing nine capsules instead of the four originally requested. He agreed to furnish them anything they wanted the next day. Washington’s ready acquiescence and affirmative acts to promote the sale of heroin distinguish the instant case from the cases in which it has been held that the defendant was entrapped. Undoubtedly, government agents set a trap for the defendant. But here, the jury could find that the agents trapped an unwary criminal, not an unwary innocent. II. Appellee contends that the failure of the government to call the special employee denied him the right of confrontation; that because of the denial of this right the district court should have granted his" } ]

[ { "docid": "21976765", "title": "", "text": "to locate Godoy. The declaration is consistent with the colloquy above; namely, Mr. Chula states that the District Attorney told him (Chula) that Godoy’s intentions to leave the area were known to the prosecution. Petitioner at all times sought the testimony of the informer because petitioner contended that the informer could exculpate him. This court concludes that Robert Godoy was a material witness on the issue of petitioner’s guilt, that his materiality was known to the district attorney’s office prior to the petitioner’s first trial and at the time it dismissed its ease against Godoy on October 9, 1964, that the prosecutor knew that Godoy would flee the area upon his case being dismissed, and that the prosecutor allowed Godoy to leave the area when by other conduct Godoy's availability could have been insured. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), holds that the identity of an informer who is a material witness on the issue of guilt must be disclosed to a defendant. See also Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir. 1968). Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), collectively stand for the proposition that the prosecutor may not knowingly engage in conduct which causes evidence which might be favorable to the defendant to be unavailable to him. Circumstances strikingly similar to those of the case at bar were discussed in Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965). The court said: We know of no rule that the Government is under any general obligation to produce an informer. 354 F.2d at 12. And If it were made to appear that the Government, through reasonable effort, could have produced * * * [the informer] and yet failed to do so when defendant demanded such production, there should be a new trial. On the other hand, if the Government was actually unable by reasonable effort" }, { "docid": "23648994", "title": "", "text": "TRASK, Circuit Judge: Hart and Robles appeal their convictions for distributing cocaine in violation of 21 U.S.C. § 841(a)(1). The appellants, who were tried separately, sold cocaine to government agents pursuant to arrangements made by paid informants. Their only defense was entrapment. The appeal presents two questions: (1) Did the district court err in denying the appellants’ respective motions to continue for failure of the government to produce the informant Murrieta, who was the key figure in the sale and upon whom the appellants depended to prove their entrapment defenses? (2) Did the district court err in foreclosing Robles from raising the entrapment defense because he refused to take the stand and there to admit the offense? I. The court took this case en banc to determine whether the government was a “guarantor” of the presence of an informant at the trial of a ease in which he had been used. We hold that it is not, and adhere to the rule that the government must use reasonable efforts to produce a government informant whose presence has been properly requested by the defendant. United States v. Leon, 487 F.2d 389 (9th Cir. 1973); United States v. Jenkins, 470 F.2d 1061 (9th Cir. 1972); Tapia-Corona v. United States, 369 F.2d 366 (9th Cir. 1966); Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965). The record discloses the essential facts. The government availed itself of the services of two Mexican nationals in the development of the case against the appellants. Their names were Borjorquez and Murrieta. The arrest and the trial took place in Tucson and the court ordered that the government agent, Lugo, “make effort to locate informants and procure their presence at trial.” Borjorquez was produced for interview on July 25 prior to the scheduled August 13 trial of appellant Hart to be followed immediately by the August 14 trial of Robles. He was questioned in the courtroom with the court interpreter assisting, and with the judge announcing his availability if required. Borjorquez identified both himself and Murrieta as being residents of Magdalena, Sonora, Mexico. He further explained that" }, { "docid": "23649019", "title": "", "text": "Government’s use of these alien bounty hunters created grave dangers of abuse. These informants had neither knowledge of legal limitations upon the conduct of American law enforcement personnel nor any motivation to respect the rights of those whom they chose as targets. The reward system maximized the “temptations to produce as many accuseds as possible at the risk of trapping not merely an unwary criminal but sometimes an unwary innocent as well.” (Velarde-Villarreal v. United States (9th Cir. 1965) 354 F.2d 9,13). “[S]ince the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished.” (Id.) We thereupon imposed on the Government the burden of proving that it used reasonable efforts to produce a Government informant whose presence has been appropriately requested by a defendant. A. The clearly erroneous standard of review does not apply to our determination of the question whether the district court correctly applied the reasonable efforts test to the undisputed facts, but, even if the standard were applicable, the district court’s decision should be reversed. The district court did not make any factual findings, and there was no occasion for them. Assuming, as we do, that the court believed Agent Lugo’s testimony, no factual issues were presented for the court to resolve. Our court has held repeatedly that the clearly erroneous standard is irrelevant to a conclusion based on the application of a legal standard, even if that conclusion is labeled a finding of fact. “When a finding is essentially one dealing with the effect of certain transactions or events, rather than a finding which resolves disputed facts, an appellate court is not bound by the rule that findings shall not be set aside, unless clearly erroneous, but is free to draw its own conclusions.” (Fleischmann Distilling Corp. v. Maier Brewing Co. (9th Cir. 1963) 314 F.2d 149,152 n. 2, quoting with approval, Stevenot v. Norberg (9th Cir. 1954) 210 F.2d 615, 619. Accord: Lundgren v. Freeman (9th Cir." }, { "docid": "15100313", "title": "", "text": "been one upon whom the success of Spanos’ dealership depended, no common purpose was established and therefore no conspiracy existed. Spanos, supra at 1017-1018 (concurring opinion). In the instant ease; Appellant engaged in multiple sales over a relatively brief period while actively encouraging Rogers to expand the volume of his business. Under these facts a conspiracy has been established. As a final ground for appeal, Sin Nagh Fong contends that his conviction should be reversed because the Government failed to produce the informer, Johnson, for defense counsel to interview as a potential witness. It is not disputed that Appellant knew the identity of the informer, and that if he had not the government might well have been required to disclose his identity under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The sole issue before this Court is thus whether the Government should have been required to demonstrate, under our holding in Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir., 1965), that it had neither taken steps to insure that Johnson would be unavailable as a witness nor failed to make reasonable efforts to produce him. In Velarde-Villarreal, we were faced with a situation in which the defendant had presented a “typical case of entrapment” and there was testimony suggesting that Government agents were directly responsible for the informer’s disappearance. Under the facts then before us, the defendant had no prior criminal record, had engaged in but a single sale of narcotics, and the sole witness who could testify as to his entrapment de fense was the missing informer. In distinguishing Washington v. United States, 275 F.2d 687 (5th Cir., 1960), we noted that: . the defendant [in Washington had] made no showing of entrapment. He had made prior sales of narcotics. He did not hesitate in making the sale there in question. . The heroin was in his own possession. He complained he was not getting enough narcotics purchasers, and objected to his customers buying from others. 354 F.2d at 12. Viewed in its context, we determined that Velarde-Villarreal was a “special" }, { "docid": "15100315", "title": "", "text": "case in which the Government should be required to demonstrate its inability through reasonable efforts to produce [the informer]” (emphasis added). Id. at 13. In the instant case, no such basis exists for placing an affirmative burden of proof on the Government. While Johnson’s testimony may have been relevant and material, requiring disclosure of his identity under Roviaro, supra, there has been no entrapment defense raised. Further, Appellant has prior convictions for narcotics violations, there has been no showing that the Government was in any way responsible for Johnson’s absence and there is no indication that the informer was even present when the narcotics transactions took place. Absent the kind of special facts before us in Velarde-Villarreal, we do not feel that the Government has an affirmative duty to produce the informer. See e. g., Wilson v. United States, 409 F.2d 184 (9th Cir., 1969); Clingan v. United States, 409 F.2d 849 (5th Cir., 1968); United States v. Cimino, 321 F.2d 509 (2d Cir., 1963); Williams v. United States, 273 F.2d 781 (9th Cir., 1959); Eberhart v. United States, 262 F.2d 421 (9th Cir., 1958). Judgment is affirmed. BROWNING, Circuit Judge, concurs in the result. . The facts as set out below have in substantial part been taken from the Government’s brief. . The agent overheard and was able to testify to the following exchange : At the time I entered, Mr. Fong and Mr. Rogers were involved in a conversation about Chinese Restaurants, talked in general terms in the operations involved. During this conversation, Mr. Rogers interrupted Mr. Fong and asked him if he had the stuff. Mr. Fong stated that he couldn’t get it until Mr. Rogers got the money. Mr. Fong stated that his connection in Los Angeles had promised him one to six kilos, but something was wrong, since it hadn’t arrived yet. He jokingly-mentioned at that point that someone could have heat them for $6,000. He stated that he had called tills man in Los An-geles and this individual had told him to fly down to Los Angeles and they should be able to straighten" }, { "docid": "8375327", "title": "", "text": "ORDER This cause, having been duly briefed and argued, was submitted to this court on May 17, 1973. A contention relied upon most heavily by the appellant is that since his convictions are for sales of heroin in transactions arranged by and participated in by a paid government informer, Richard Armstrong, whom the government apparently has used in this role in other eases, and since appellant's defense is entrapment, and since his two attempts to subpoena Armstrong as the sole witness to corroborate his allegations of entrapment were unavailing, the burden then rested upon the government “to expend every reasonable effort” to produce its employee so the defense could call him as a witness. Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965). The appellant moved the trial court to order the government to produce Armstrong, but this motion was denied. “[S]ince the government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished. If [the informer] is available for hire, he should be available to come and testify . . . [and] [w]e think whether there was a failure to expend every reasonable effort to obtain the witness is a question of fact for the trial judge.” 354 F.2d at 13. Therefore in accordance with the teachings of Velarde, we remand the cause “to the trial court for the [limited] purpose of holding a further hearing at which the Government shall be given the opportunity of proving if such be the case that it was genuinely unable through reasonable efforts to produce [Armstrong] and also, if such be the case, that the Government did not take steps to see to it that [Armstrong] would be or become unavailable as a witness. The burden of proving these things should be on the government.” Id. The court upon remand may hear such evidence as it deems necessary and proper, and then shall certify its findings to this court." }, { "docid": "16189762", "title": "", "text": "on the government’s part unnecessary. Here, however, special problems associated with locating and protecting informants arise. It is doubtful from the record whether Chippas could have located Lett directly for service of a subpoena. Furthermore, even if Chippas could have obtained Lett’s address, it appears from the record that Lett is a Canadian subject, for whom a subpoena issued under Fed.R. Crim.P. 17(e)(2) would have no force. See 28 U.S.C. § 1783; Wright, Federal Practice and Procedure, (Criminal) § 277. Under the circumstances, Chippas clearly lacked the power to bring John Lett into court. It appears from the record that the government had this power. Agent Lorino testified at the suppression hearing that Lett had served as informant on other occasions, that Lorino was the principal American government agent in charge of Lett’s activities as confidential informant, and that Lorino could quickly find Lett in Canada “if need be.” Suppression Hearing at 25. Although this admission does not require the conclusion that Lorino could compel Lett’s attendance at trial, it undermines the government’s assertion that it employed “every reasonable effort” to make Lett available to the defense. We have approved the Ninth Circuit’s approach to this problem in a similar case. If [a frequently used informant] is available for hire, he should be available to come and testify____ And since the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished. Velarde-Villarreal v. United States, 354 F.2d 9, 13 (9th Cir.1965), quoted in Barnes, 486 F.2d at 780. If Lett had information which might have exculpated Chippas, the government's failure to produce him in these circumstances would be grounds for reversal. On this record, however, we see no reasonable probability that Lett’s presence at trial could have produced a different verdict. Unlike the informants in Roviaro and Barnes, Lett was not alone with Chip-pas when the criminal transaction was initially arranged, and was not present at all during the subsequent events for" }, { "docid": "15100314", "title": "", "text": "insure that Johnson would be unavailable as a witness nor failed to make reasonable efforts to produce him. In Velarde-Villarreal, we were faced with a situation in which the defendant had presented a “typical case of entrapment” and there was testimony suggesting that Government agents were directly responsible for the informer’s disappearance. Under the facts then before us, the defendant had no prior criminal record, had engaged in but a single sale of narcotics, and the sole witness who could testify as to his entrapment de fense was the missing informer. In distinguishing Washington v. United States, 275 F.2d 687 (5th Cir., 1960), we noted that: . the defendant [in Washington had] made no showing of entrapment. He had made prior sales of narcotics. He did not hesitate in making the sale there in question. . The heroin was in his own possession. He complained he was not getting enough narcotics purchasers, and objected to his customers buying from others. 354 F.2d at 12. Viewed in its context, we determined that Velarde-Villarreal was a “special case in which the Government should be required to demonstrate its inability through reasonable efforts to produce [the informer]” (emphasis added). Id. at 13. In the instant case, no such basis exists for placing an affirmative burden of proof on the Government. While Johnson’s testimony may have been relevant and material, requiring disclosure of his identity under Roviaro, supra, there has been no entrapment defense raised. Further, Appellant has prior convictions for narcotics violations, there has been no showing that the Government was in any way responsible for Johnson’s absence and there is no indication that the informer was even present when the narcotics transactions took place. Absent the kind of special facts before us in Velarde-Villarreal, we do not feel that the Government has an affirmative duty to produce the informer. See e. g., Wilson v. United States, 409 F.2d 184 (9th Cir., 1969); Clingan v. United States, 409 F.2d 849 (5th Cir., 1968); United States v. Cimino, 321 F.2d 509 (2d Cir., 1963); Williams v. United States, 273 F.2d 781 (9th Cir., 1959);" }, { "docid": "2151112", "title": "", "text": "presumption that his testimony would be unfavorable to the prosecution; (3) in not concluding that there was entrapment as a matter of law; (4) in refusing to allow defendant Hayes to testify as to his state of mind in connection with the entrapment defense; and (5) in submitting an instruction on aiding and abetting as a basis of guilt. First, we consider defendant’s proposition that the trial court erred as a matter of law in not requiring the government to produce its paid informant, Mr. Ellerton, at trial. This contention was raised first in a pretrial motion which was argued to the trial court and denied. At the hearing the court indicated to defendant’s attorney that it would not require the government to call Ellerton as a witness, but the court stated that the government would have to advise defendant of Ellerton’s address so that he could be called as a defense witness, if desired. Defendant’s attorney stated that the defense would call him “[i]f the government would do that.” Government counsel then advised the court that they had Ellerton’s October, 1969, address but had had no contact with him since that time; that they could not find him for the last trial; that efforts were being made to locate him, which would continue; and that if he were found, defense counsel would be notified. The court accepted this statement by government counsel and entered a subsequent order denying the defense motion for production of Ellerton. Defendant’s motions after trial raised the question again, but were overruled. On appeal defendant says the conviction must be reversed since the government failed to produce Ellerton and made no showing of a reasonable effort to do so. He argues that Ellerton’s appearance is crucial as corroboration in a case like this where the defense is entrapment. Reliance is placed primarily on Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir.), and United States v. Clarke, 220 F.Supp. 905 (E.D.Pa.). Under various circumstances the courts have held the government to a duty to produce an informant or make a showing of a reasonable effort" }, { "docid": "2040383", "title": "", "text": "448 F.2d 1207, 1214-1215 (5th Cir. 1971); Maxwell v. Stephens, 348 F.2d 325, 331-332 (8th Cir.), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965). The Supreme Court in Swain concluded, however, that the presumption protecting the prosecutor may be overcome, and a prima facie case of discrimination established, by proof of a prosecutor’s systematic exclusion of blacks from petit juries over an extended period of time. 380 U.S. at 224, 86 S.Ct. 387. See United States v. Pearson, supra. No such proof has been offered in the present case. II. Pursuant to an order of the trial court, the government informed appellant prior to trial of Richard Armstrong’s name and address. Thereafter appellant attempted to locate Armstrong in order to subpoena him to appear at the trial as a witness for the defense. When all efforts proved unsuccessful, appellant asked the court for an order requiring the government to produce Armstrong. The denial of that request is the subject of appellant’s second claim of error. Both in his brief and on oral argument to this court, appellant suggested that the government could have produced Armstrong if it had been in its best interests to do so. The government, on the other hand, stated that it had no knowledge of Armstrong’s whereabouts, and that since Armstrong and appellant had grown up together, Armstrong was equally available to both sides. After submission of the case to us on May 17, 1973, we resolved that the government should have been compelled to demonstrate its inability through reasonable efforts to produce Armstrong. In so deciding, we adopted the reasoning of Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965), in which it was said: “[S]ince the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished. * •» * * # * If [the informant] is available for hire, he should be available to come and testify. . . . We" }, { "docid": "2040386", "title": "", "text": "witness in a prior narcotics case in which he had participated as an informant. Subsequent to the close of that case, Armstrong disappeared and efforts to locate him were fruitless. Agent Har-ker testified that he had attempted to subpoena Armstrong for the hearing, and had been unsuccessful, although he had talked to him on the telephone. Following the hearing, the trial court issued an order, dated June 8, 1973, finding “that the Government expended every reasonable effort to procure the testimony of Richard Armstrong at said trial and was genuinely unable through such reasonable efforts to produce Armstrong as a witness [and] that the Government took no steps whatever to see to it that Armstrong would be or become unavailable as a witness in this case.” We have carefully examined the record of the evidentiary hearing, and we agree with the trial judge that the government sustained its burden of proof on this issue. Our resolution of this question also disposes of appellant’s alternative claim that the trial court erred in refusing to give appellant’s requested missing witness instruction. III. Appellant’s third contention is that the trial court erred in refusing to rule, as a matter of law, that appellant had been entrapped. Appellant relies on United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), in which the court held that if the defendant testifies to facts which establish entrapment as a matter of law, and the government cannot come forward with evidence to contradict defendant’s testimony, the defendant is entitled to discharge. Appellant argues that the only witness who could have contradicted appellant’s testimony that he had been entrapped was Armstrong, and Armstrong, of course, did not testify. It is by no means clear that the facts testified to by appellant, if undisputed, would have established entrapment as a matter of law. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). But we need not decide that difficult question since appellant’s testimony in this ease was plainly contradicted in several respects. And it is fundamental that in determining the sufficiency of the" }, { "docid": "23080946", "title": "", "text": "him were fruitless.” Even in that case, which goes as far as any we can find in support of appellant’s position here, the Government’s duty is merely one of “reasonable effort” to produce. Looking in the other direction is the case of Washington v. United States, 5 Cir., 275 F.2d 687. There defendant claimed entrapment by a special employee of the Government and argued that he should have been acquitted because of the failure of the Government to call the special employee as a witness. This contention was rejected. The court said: (p. 690) “The government is not required to call all witnesses who are competent to testify. * * * The principle applies even to a special agent or informer who participated in the transaction.” The action of the court in that case may be explained, in part at least, by the fact that the court noted that the defendant there had made no showing of entrapment. He had made prior sales of narcotics. He did not hesitate in making the sale there in question. He arranged a sale over the telephone. The heroin was in his own possession. He complained he was not getting enough narcotics purchasers, and objected to his customers buying from others. The case now before us is widely different. This defendant had never before been in any similar conflict with the law. There is no showing that he ever dealt with, narcotics before, or that he ever possessed any. On his own testimony this presented a typical case of entrapment. See Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. Disturbing is certain testimony of one of the customs agents who described the departure of Margarito from the motel where the sale of the drug had taken place. That testimony was as follows: “Q. Did you see him leave? A. Yes, sir. Q. And you saw him leave by the stairway? A. Yes, sir. Q. And, I assume, going down. What did you see him do after" }, { "docid": "2040384", "title": "", "text": "oral argument to this court, appellant suggested that the government could have produced Armstrong if it had been in its best interests to do so. The government, on the other hand, stated that it had no knowledge of Armstrong’s whereabouts, and that since Armstrong and appellant had grown up together, Armstrong was equally available to both sides. After submission of the case to us on May 17, 1973, we resolved that the government should have been compelled to demonstrate its inability through reasonable efforts to produce Armstrong. In so deciding, we adopted the reasoning of Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965), in which it was said: “[S]ince the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished. * •» * * # * If [the informant] is available for hire, he should be available to come and testify. . . . We think whether there was a failure to expend every reasonable effort to obtain the Witness is a question of fact for the trial judge.” 354 F.2d at 13. In accordance with the teachings of Velarde, we issued an order, filed May 18, 1973, 479 F.2d 310, 8 Cir., remanding the cause “to the trial court for the [limited] purpose of holding a further hearing at which the Government shall be given the opportunity of proving if such be the case that it was genuinely unable through reasonable efforts to produce [Armstrong] and also, if such be the case, that the Government did not take steps to see to it that [Armstrong] would be or become unavailable as a witness. The burden of proving these things should be on the Government.” 479 F.2d at 511. Pursuant to our order, the trial judge held a plenary hearing on June 1, 1973. The testimony of government witnesses established that Armstrong had received at least one threat on his life as a result of his testimony as a government" }, { "docid": "2040385", "title": "", "text": "think whether there was a failure to expend every reasonable effort to obtain the Witness is a question of fact for the trial judge.” 354 F.2d at 13. In accordance with the teachings of Velarde, we issued an order, filed May 18, 1973, 479 F.2d 310, 8 Cir., remanding the cause “to the trial court for the [limited] purpose of holding a further hearing at which the Government shall be given the opportunity of proving if such be the case that it was genuinely unable through reasonable efforts to produce [Armstrong] and also, if such be the case, that the Government did not take steps to see to it that [Armstrong] would be or become unavailable as a witness. The burden of proving these things should be on the Government.” 479 F.2d at 511. Pursuant to our order, the trial judge held a plenary hearing on June 1, 1973. The testimony of government witnesses established that Armstrong had received at least one threat on his life as a result of his testimony as a government witness in a prior narcotics case in which he had participated as an informant. Subsequent to the close of that case, Armstrong disappeared and efforts to locate him were fruitless. Agent Har-ker testified that he had attempted to subpoena Armstrong for the hearing, and had been unsuccessful, although he had talked to him on the telephone. Following the hearing, the trial court issued an order, dated June 8, 1973, finding “that the Government expended every reasonable effort to procure the testimony of Richard Armstrong at said trial and was genuinely unable through such reasonable efforts to produce Armstrong as a witness [and] that the Government took no steps whatever to see to it that Armstrong would be or become unavailable as a witness in this case.” We have carefully examined the record of the evidentiary hearing, and we agree with the trial judge that the government sustained its burden of proof on this issue. Our resolution of this question also disposes of appellant’s alternative claim that the trial court erred in refusing to give appellant’s" }, { "docid": "16189763", "title": "", "text": "it employed “every reasonable effort” to make Lett available to the defense. We have approved the Ninth Circuit’s approach to this problem in a similar case. If [a frequently used informant] is available for hire, he should be available to come and testify____ And since the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished. Velarde-Villarreal v. United States, 354 F.2d 9, 13 (9th Cir.1965), quoted in Barnes, 486 F.2d at 780. If Lett had information which might have exculpated Chippas, the government's failure to produce him in these circumstances would be grounds for reversal. On this record, however, we see no reasonable probability that Lett’s presence at trial could have produced a different verdict. Unlike the informants in Roviaro and Barnes, Lett was not alone with Chip-pas when the criminal transaction was initially arranged, and was not present at all during the subsequent events for which Chippas was convicted. Agent Lorino, and not Lett, was the undercover officer who negotiated and executed the deal with Chip-pas, and Chippas had a full opportunity to cross-examine Lorino about his informant’s criminal history and the extent of Lett’s participation in the transaction. Chippas was also allowed to tell the jury his own account of Lett’s involvement without restriction. The sheer implausibility of Chip-pas’s story—that Lett would supply $155,-000 worth of his own cocaine to Chippas, and then maliciously arrange for Chippas to sell the cocaine to someone Lett knew to be a DEA agent—leaves us without a sufficient reason to require Lett to undergo the considerable risk of attending trial. Because Lett’s absence does not “undermine[] confidence in the outcome of the trial,” we cannot reverse Chippas’s conviction on this ground. United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985). Chippas argues, in the alternative, that the District Court abused its discretion by refusing to give the jury Chippas’s proposed “missing witness” instruction. This instruction would" }, { "docid": "15100312", "title": "", "text": "is involved. United States v. Agueci, 310 F.2d 817 (2d Cir., 1962). As the court in that case noted, in contrasting Peoni with United States v. Bruno, supra: In Bruno the evidence sufficed to warrant the jury’s finding that the defendants knew remote links must have existed. In Peoni they did not. Had the prosecution been able to establish more than one sale from Peoni to Regno, the inference that Peoni knew that sales beyond his own would be made, and that he thus shared a common purpose with Dorsey as Reg-no’s vendee, might well have warranted submission to the jury. United States v. Agueci, supra at 827. Similarly, in United States v. Spanos, supra, this Court was faced with a single sale of amphetamines which we viewed as falling within the “very narrow field” to which Peoni applies. The defendant in Spanos had subsequently refused to sell additional quantities of pills to the Government informer, and thus no reliance upon the purchaser’s business could be shown. Because the purchaser was not shown to have been one upon whom the success of Spanos’ dealership depended, no common purpose was established and therefore no conspiracy existed. Spanos, supra at 1017-1018 (concurring opinion). In the instant ease; Appellant engaged in multiple sales over a relatively brief period while actively encouraging Rogers to expand the volume of his business. Under these facts a conspiracy has been established. As a final ground for appeal, Sin Nagh Fong contends that his conviction should be reversed because the Government failed to produce the informer, Johnson, for defense counsel to interview as a potential witness. It is not disputed that Appellant knew the identity of the informer, and that if he had not the government might well have been required to disclose his identity under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The sole issue before this Court is thus whether the Government should have been required to demonstrate, under our holding in Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir., 1965), that it had neither taken steps to" }, { "docid": "21976766", "title": "", "text": "United States, 394 F.2d 820 (9th Cir. 1968). Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), collectively stand for the proposition that the prosecutor may not knowingly engage in conduct which causes evidence which might be favorable to the defendant to be unavailable to him. Circumstances strikingly similar to those of the case at bar were discussed in Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965). The court said: We know of no rule that the Government is under any general obligation to produce an informer. 354 F.2d at 12. And If it were made to appear that the Government, through reasonable effort, could have produced * * * [the informer] and yet failed to do so when defendant demanded such production, there should be a new trial. On the other hand, if the Government was actually unable by reasonable effort to produce him, we cannot hold that such inability would require a dismissal of the case, unless of course the Government itself purposely saw to it that * * * [the informer] disappeared, in the manner suggested hereafter. 354 F.2d at 12 [emphasis added] If the customs agent had reason to know that * * * [the informer] would be a material witness at the trial of his case and if this agent participated in a plan to have the witness disappear so that he might be unavailable to the defense his actions might constitute an obstruction of the defense within the principles expounded in Alcorta v. State of Texas * *. The case of Roviaro v. United States would appear to require that one in the position of this appellant should not be denied access to such an informer through any action of the United States. 354 F.2d at 13 [emphasis added] The Vellarde-Villarreal case was remanded for an evidentiary inquiry into the government’s action. In the case at bar that inquiry has been" }, { "docid": "23649018", "title": "", "text": "that a successful foray into the United States could and did yield him almost as much money for a few days’ work as he could earn at hard labor in a year in Mexico. The Government gave the informants no training and virtually no supervision. The informants were simply unleashed to set up drug and narcotics transactions in this country. Murrieta picked his own investigatory targets. When he wanted to report his activities, he telephoned Agent Lugo. Agent Lugo never initiated calls; indeed, he did not know their home telephone numbers, if any, or their home addresses. He did learn the address of Murietta’s store during the Borjorquez interview. He also knew that the informants regularly retreated to Mexico after an arrest. Agent Lugo saw the informants from time to time, including an occasion when Murrieta appeared to testify in another trial in May 1974, after Hart and Robles had been arrested. At that time, the Government knew that Murrieta would be a mate rial witness in a later prosecution of Hart and Robles. The Government’s use of these alien bounty hunters created grave dangers of abuse. These informants had neither knowledge of legal limitations upon the conduct of American law enforcement personnel nor any motivation to respect the rights of those whom they chose as targets. The reward system maximized the “temptations to produce as many accuseds as possible at the risk of trapping not merely an unwary criminal but sometimes an unwary innocent as well.” (Velarde-Villarreal v. United States (9th Cir. 1965) 354 F.2d 9,13). “[S]ince the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished.” (Id.) We thereupon imposed on the Government the burden of proving that it used reasonable efforts to produce a Government informant whose presence has been appropriately requested by a defendant. A. The clearly erroneous standard of review does not apply to our determination of the question whether the district court correctly applied the" }, { "docid": "23080945", "title": "", "text": "of course the Government itself purposely saw to it that Margarito disappeared, in the manner suggested hereafter. We know of no rule that the Government is under any general obligation to produce an informer. The right of a defendant to have the testimony of such an informer, where the defense of entrapment is presented, is recognized in United States v. White, 2 Cir., 324 F.2d 814, although the court in that case noted that “Cases in this circuit and others have made it abundantly clear that the Government is not the guarantor of a special employee’s appearance at trial.” In United States v. Clarke, D.C.E.D. Pa., 220 F.Supp. 905, 909, the court granted the defendant a new trial because it found the Government had not shown it had performed its “duty to expend every reasonable effort to produce [the informer] at trial.” The defense there was entrapment. The court said: “We think common fairness made it the Government’s duty to produce Flores at the trial, or, failing that, to show that reasonable efforts to produce him were fruitless.” Even in that case, which goes as far as any we can find in support of appellant’s position here, the Government’s duty is merely one of “reasonable effort” to produce. Looking in the other direction is the case of Washington v. United States, 5 Cir., 275 F.2d 687. There defendant claimed entrapment by a special employee of the Government and argued that he should have been acquitted because of the failure of the Government to call the special employee as a witness. This contention was rejected. The court said: (p. 690) “The government is not required to call all witnesses who are competent to testify. * * * The principle applies even to a special agent or informer who participated in the transaction.” The action of the court in that case may be explained, in part at least, by the fact that the court noted that the defendant there had made no showing of entrapment. He had made prior sales of narcotics. He did not hesitate in making the sale there in" }, { "docid": "2151113", "title": "", "text": "court that they had Ellerton’s October, 1969, address but had had no contact with him since that time; that they could not find him for the last trial; that efforts were being made to locate him, which would continue; and that if he were found, defense counsel would be notified. The court accepted this statement by government counsel and entered a subsequent order denying the defense motion for production of Ellerton. Defendant’s motions after trial raised the question again, but were overruled. On appeal defendant says the conviction must be reversed since the government failed to produce Ellerton and made no showing of a reasonable effort to do so. He argues that Ellerton’s appearance is crucial as corroboration in a case like this where the defense is entrapment. Reliance is placed primarily on Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir.), and United States v. Clarke, 220 F.Supp. 905 (E.D.Pa.). Under various circumstances the courts have held the government to a duty to produce an informant or make a showing of a reasonable effort to do so. We are, however, persuaded to agree with the trial court that in this case the government was not obligated to call Ellerton as its own witness. The court accepted as sufficient the undertaking of the prosecution to seek his present location and' furnish it to the defense. We feel this was the proper measure of the government’s duty in this case. The government is not the guarantor of the appearance of its informant at trial, but is required to accord reasonable cooperation in securing his appearance where a timely request is made and his testimony might substantiate a claim of the defense. United States v. Tuck, 380 F.2d 857, 859 (2d Cir.); see also United States v. Makekau, 429 F.2d 1403 (9th Cir.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141. On this record we find no merit in defendant’s request for a reversal on the ground that the government failed to show a reasonable effort to ascertain Ellerton’s whereabouts. There was no motion or objection calling for a" } ]

[ { "docid": "22759088", "title": "", "text": "from pretrial motions without qualification.” Ibid. The court noted that Congress had explicitly provided that the excludability of certain other delays depended on their reasonableness, but had not done so for delays from pretrial motions. Ibid. Judge Ferguson dissented, relying on the Act’s legislative history and the interpretations of other Circuits. Id., at 625-626. We granted certiorari to resolve a conflict among the Circuits. 474 U. S. 900 (1985). We now affirm. II The Speedy Trial Act requires that a criminal trial must commence within 70 days of the latest of a defendant’s indictment, information, or appearance, barring periods of ex-cludable delay. United States v. Rojas-Contreras, 474 U. S. 231 (1985); see 18 U. S. C. § 3161(c)(1). Section 3161(h) (1)(F) (subsection (F)) excludes from these 70 days certain delays occasioned by the filing of pretrial motions: “(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence: “(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to— “(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion” (emphasis added). A On its face, subsection (F) excludes “[a]ny period of delay” caused by “any pretrial motion,” “from the filing of the motion through the conclusion of the hearing.” The plain terms of the statute appear to exclude all time between the filing of and the hearing on a motion whether that hearing was prompt or not. Moreover, subsection (F) does not require that a period of delay be “reasonable” to be excluded, although Congress clearly knew how to limit an exclusion: in § 3161(h)(7), Congress provided for exclusion of a “reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” Apart from this single instance, every other" } ]

[ { "docid": "11456796", "title": "", "text": "only reason the record in Williams was found to be insufficient. . The dissent states our precedent does not require inquiry. Dissenting Op. at 1278-79. United States v. Gonzales, however, was explicitly premised on the improper lack of inquiry by the district court regarding the details underlying the claimed need for an ends-of-justice continuance. 137 F.3d 1431, 1434 (10th Cir. 1998) (concluding a speedy trial violation occurred based on the \"complete lack of inquiry” by the district court as to certain factors underlying the continuance request and inquiry that was not \"adequate” as to other considerations). The dissent also suggests that to make inquiry of defense counsel regarding the general nature of the newly disclosed discovery would somehow risk tipping off the prosecution. Dissenting Op. at 1278-79. That risk, however, is non-existent when, as here, the new evidence was provided by the prosecution itself. . If any one of the seven continuances were erroneously granted, a Speedy Trial Act violation occurred. TYMKOVICH, Circuit Judge, dissenting in part; concurring in part. Because I conclude this case complied with the Speedy Trial Act and that the district court made adequate findings supporting the various ends-of-justice continuances, I respectfully dissent. I concur with the majority’s disposition of the Sixth Amendment speedy trial claim. I. “[C]riminal cases vary widely and ... there are valid reasons for greater delay in particular cases”; therefore, the Speedy Trial Act offers “flexibility” by including “a long and detailed list of periods of delay that are excluded in computing the time within which trial must start.” Zedner v. United States, 547 U.S. 489, 497, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Examples of relevant exclusions include a “reasonable period of delay” attributable to a proceedings of a co-defendant, 18 U.S.C. § 3161(h)(6), and delay attributable to an ends-of-justice continuance. 18 U.S.C. § 3161(h)(7). “Much of the Act’s flexibility is furnished by § 3161(h)[ (7) ], which governs ends-of-justice continuances.” Zedner, 547 U.S. at 498, 126 S.Ct. 1976. This provision excludes “[a]ny period of delay resulting from a continuance granted by any judge ... on the basis of ... findings" }, { "docid": "22160741", "title": "", "text": "(designating assault or battery on officer as felony); id. § 18.2-479.1 (providing that attempt to prevent officer from making lawful arrest is misdemean- or). As a result, the search of Kellam’s person was incident to a lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (concluding that search incident to lawful arrest does not violate Fourth Amendment). Finally, the search of Kellam’s purse, which was on the front passenger seat of her vehicle, was likewise constitutional. See United States v. Scheetz, 293 F.3d 175, 184 (4th Cir.2002) (concluding that odor of marijuana coming from properly stopped vehicle satisfies probable cause for search of vehicle and baggage therein). In sum, the facts found by the district court provide ample support for its ruling on the suppression issue. They are not clearly erroneous, the court did not commit legal error, and we thus affirm its denial of the suppression motion. 3. Kellam’s third contention on appeal is that the district court erred in declining to dismiss the Indictment for lack of a speedy trial. The Speedy Trial Act generally requires that a criminal trial commence within seventy days of the filing of an information or indictment, or of the defendant’s initial appearance, whichever last occurs. See 18 U.S.C. § 3161(c)(1). The purpose of the Act is to protect the interests of both the defendant and the public; however, certain delays may be excluded from the seventy-day count, including those where the court has found “that the ends of justice served by granting [a] continuance outweigh the public’s and defendant’s interests in a speedy trial.” Zedner v. United States, 547 U.S. 489, 498-99, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006); see also 18 U.S.C. § 3161(h)(7)(A) (formerly found in § 3161(h)(8)). In addition to such continuances, excludable delays include those attributable to the pendency of pretrial motions. See § 3161(h) (listing periods of delay excluded from computation). Of note, when a prosecution involves multiple defendants, the “time excludable for one defendant is excludable for all defendants.” United States v. Jarrell, 147 F.3d 315, 316 (4th" }, { "docid": "20512545", "title": "", "text": "“[T]he district court retains broad discretion whether to dismiss the indictment with or without prejudice.” United States v. Abdush-Shakur, 465 F.3d 458, 462 (10th Cir. 2006). Several “enumerated events” are excluded from the statute’s prescribed seventy-day period, thus tolling the speedy-trial clock. Bloate v. United States, 559 U.S. 196, 199, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010); accord United States v. Gordon, 710 F.3d 1124, 1157 (10th Cir.), cert, denied, - U.S. -, 134 S.Ct. 617, 187 L.Ed.2d 400 (2013). As is relevant here, 18 U.S.C. § 3161(h)(1)(D) provides for the exclusion of periods of “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Additionally, § 3161(h)(1)(H) excludes “delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.” We have previously explained that these subsections work in concert such that “if a motion is one that does not require a hearing, the Act excludes time through the period of its prompt disposition, but only if that period does not exceed thirty days from the date the motion is taken under advisement.” United States v. Williams, 511 F.3d 1044, 1048 (10th Cir.2007). As noted in Part I, supra, time is also excludable when the district court grants a continuance upon a finding that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A); accord Watson, 766 F.3d at 1229. Ends-of-justice continuances afford the district court a modicum of flexibility in managing particularly complex or difficult cases. See Zedner, 547 U.S. at 508, 126 S.Ct. 1976. Nevertheless, “[w]e have repeatedly noted that an ends-of-justice continuance is ‘meant to be a rarely used tool for those cases demanding more flexible treatment,’ ” Banks, 761 F.3d at 1175 (quoting Toombs, 574 F.3d at 1269), and that such continuances “should not be granted cavalierly,” id. (quoting Williams, 511 F.3d at 1049) (internal quotation marks omitted). B" }, { "docid": "15280984", "title": "", "text": "last hearing or filing of supporting papers, whichever is later.” Id. at 1031-32. In such circumstances, the court may exclude no more than 30 days. § 3161(h)(l)(J); see also Henderson, 476 U.S. at 329, 106 S.Ct. 1871; Sutter, 340 F.3d at 1030. We next turn to delays resulting from continuances granted by a district court under § 3161(h)(8). Section 3161(h)(8)(A) provides that the court must exclude periods of delay resulting from a continuance granted by a judge “on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” § 3161(h)(8)(A). In order to exclude such a period of delay, the court must state such findings in the record, “either orally or in writing,” § 3161(h)(8)(A), “by the time a district court rules on a defendant’s motion to dismiss under § 3162(a)(2)” of the Speedy Trial Act. Zedner v. United States, 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006); see also United States v. Bryant, 726 F.2d 510, 511 (9th Cir.1984). Section 3161(h)(8)(B) sets forth factors the court should consider in determining whether to grant such a continuance, including “[wjhether the failure to grant such a continuance ... would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.” § 3161(h)(8)(B)(iv). If the defendant is not brought to trial within the 70-day period mandated by the Speedy Trial Act (subtracting all properly excludable periods of delay), then the defendant may move for a dismissal of the indictment. See 18 U.S.C. § 3162(a)(2). The defendant has the burden of proving that the delay meets the criteria for dismissal. Id. If the defendant carries this burden, the indictment “shall be dismissed,” and the district court must then consider whether to dismiss the case with or with out prejudice. Id. Section 3162(a)(2) provides: “In determining" }, { "docid": "11456771", "title": "", "text": "1433. “In setting forth its findings, however, the district court need not articulate facts which are obvious and set forth in the motion for the continuance itself.” United States v. Occhipinti, 998 F.2d 791, 797 (10th Cir.1993) (quotation omitted). While the preferred practice is for the district court to make its findings on the record at the time the continuance is granted, findings made contemporaneously with the granting of the continuance may be entered on the record after the fact if done before the court rules on a defendant’s motion to dismiss. Zedner v. United States, 547 U.S. 489, 506-07 & n. 7, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Toombs claims the district court made insufficient findings as to the seven continuances expressly granted pursuant to the ends-of-justice provision. Fifty days in the approximately twenty-two month period between Toombs’s arraignment and trial date were not excluded by the district court for Speedy Trial Act purposes. Because pursuant to each of the seven challenged continuances the district court excluded over twenty days, if any one of the continuances was granted in error, a violation of the seventy-day requirement of the Speedy Trial Act would exist. 18 U.S.C. § 3161(c)(1). The record is particularly sparse with regard to the district court’s findings underlying two of the ends-of-justice continuances. The May 1, 2007, order states in relevant part: The Court, having been well and duly advised in the premises, finds that the motion should be granted in order for the defense to adequately prepare and for the reasons stated in the motion. The Court further finds that the period of delay resulting from the continuance granted pursuant to this order shall be excludable time as provided for in 18 U.S.C. [§ 3161(h)(7) ] in that the ends of justice served by the granting of such continuance outweigh the best interest of the public and the defendant in a speedy trial. The motion to which this order refers, filed on April 30, 2007, states that a continuance is requested on the following grounds: 1. This case is scheduled for Jury Trial commencing May" }, { "docid": "15280983", "title": "", "text": "pretrial motion is pending] should be imposed by circuit or district court rules rather than by the statute itself.” Henderson, 476 U.S. at 328, 106 S.Ct. 1871. We have identified two exceptions ' to this general rule that a district court must exclude all time during the pendency of a pretrial motion that requires a hearing. First, if a district court continues a motion until after trial, the court may not exclude the time while the postponed motion is pending. United States v. Lewis, 349 F.3d 1116, 1121-22 (9th Cir.2003); Clymer, 25 F.3d at 830. Second, we have made an exception for certain pro forma motions to compel discovery in a criminal case where the motions required no decision by the district court “unless and until future discovery disputes arose.” Sutter, 340 F.3d at 1029-32. If such a discovery motion is not “continued until a date certain or the happening of an event certain,” then the motion is deemed to be “under advisement,” for . purposes of § 3161(h)(l)(J), “as of the date of the last hearing or filing of supporting papers, whichever is later.” Id. at 1031-32. In such circumstances, the court may exclude no more than 30 days. § 3161(h)(l)(J); see also Henderson, 476 U.S. at 329, 106 S.Ct. 1871; Sutter, 340 F.3d at 1030. We next turn to delays resulting from continuances granted by a district court under § 3161(h)(8). Section 3161(h)(8)(A) provides that the court must exclude periods of delay resulting from a continuance granted by a judge “on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” § 3161(h)(8)(A). In order to exclude such a period of delay, the court must state such findings in the record, “either orally or in writing,” § 3161(h)(8)(A), “by the time a district court rules on a defendant’s motion to dismiss under § 3162(a)(2)” of the Speedy Trial Act. Zedner v. United States, 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006); see also United States v." }, { "docid": "9065157", "title": "", "text": "of time is automatically excludable, the Speedy Trial Act allows for a continuance whenever the judge finds \"that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.\" 18 U.S.C. § 3161(h)(7)(A). This is a common ground for excluding time and the Supreme Court has noted that ends-of-justice continuances furnish \"[m]uch of the Act's flexibility.\" Zedner v. United States , 547 U.S. 489, 498, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). To exclude time under this exception, the court must consider certain factors, such as whether the failure to grant the continuance would \"result in a miscarriage of justice,\" § 3161(h)(7)(B)(i) ; whether due to the nature of the case (or other factors), the case is too complex to reasonably expect adequate preparation within the Act's time limits, § 3161(h)(7)(B)(ii) ; or whether a refusal to continue the case would deny the defendant \"reasonable time to obtain counsel,\" or would unreasonably deny either party time for \"effective preparation,\" § 3161(h)(7)(B)(iv). Notably, the list of enumerated factors is not exhaustive, § 3161(h)(7)(B) (\"The factors, among others , which a judge shall consider....\" (emphasis added)), but preindictment plea negotiations are not expressly included. See § 3161(h)(7)(B)(i)-(iv). The Supreme Court has held that other types of delay that are not excludable under subsection (h)(1) are excludable under the more flexible framework of subsection (h)(7). See Bloate , 559 U.S. at 214, 130 S.Ct. 1345 (holding that the time spent to prepare pretrial motions, while not excludable under subsection (h)(1), is excludable under subsection (h)(7)). And a number of our sister circuits have concluded that time spent negotiating preindictment plea agreements can be excluded under subsection (h)(7)'s ends-of-justice exclusion. See Mathurin , 690 F.3d at 1241-42 ; United States v. Fields , 39 F.3d 439, 445 (3d Cir. 1994) (Alito, J.); United States v. Williams , 12 F.3d 452, 460 (5th Cir. 1994), abrogated on other grounds by United States v. Wells , 519 U.S. 482, 492, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997). We agree, and hold that the time" }, { "docid": "9065156", "title": "", "text": "both an extension of Bloate 's reasoning and the overruling of two of our published decisions. We cannot fault a district court for following our binding caselaw, as it was required to do. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (\"If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.\"). Thus, White cannot show that the district court committed plain error in denying his motion to dismiss on Speedy Trial Act grounds. IV. Finally, we turn to the government's alternate argument-that the district court's order granting the parties' stipulation to exclude the preindictment-plea-negotiation period from Speedy Trial Act calculations satisfied the requirements for an ends-of-justice continuance under the Act. We agree and hold this to be adequate alternative grounds for affirmance. Regardless of whether a period of time is automatically excludable, the Speedy Trial Act allows for a continuance whenever the judge finds \"that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.\" 18 U.S.C. § 3161(h)(7)(A). This is a common ground for excluding time and the Supreme Court has noted that ends-of-justice continuances furnish \"[m]uch of the Act's flexibility.\" Zedner v. United States , 547 U.S. 489, 498, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). To exclude time under this exception, the court must consider certain factors, such as whether the failure to grant the continuance would \"result in a miscarriage of justice,\" § 3161(h)(7)(B)(i) ; whether due to the nature of the case (or other factors), the case is too complex to reasonably expect adequate preparation within the Act's time limits, § 3161(h)(7)(B)(ii) ; or whether a refusal to continue the case would deny the defendant \"reasonable time to obtain counsel,\" or would unreasonably deny either party time for \"effective preparation,\" § 3161(h)(7)(B)(iv). Notably, the" }, { "docid": "22160742", "title": "", "text": "lack of a speedy trial. The Speedy Trial Act generally requires that a criminal trial commence within seventy days of the filing of an information or indictment, or of the defendant’s initial appearance, whichever last occurs. See 18 U.S.C. § 3161(c)(1). The purpose of the Act is to protect the interests of both the defendant and the public; however, certain delays may be excluded from the seventy-day count, including those where the court has found “that the ends of justice served by granting [a] continuance outweigh the public’s and defendant’s interests in a speedy trial.” Zedner v. United States, 547 U.S. 489, 498-99, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006); see also 18 U.S.C. § 3161(h)(7)(A) (formerly found in § 3161(h)(8)). In addition to such continuances, excludable delays include those attributable to the pendency of pretrial motions. See § 3161(h) (listing periods of delay excluded from computation). Of note, when a prosecution involves multiple defendants, the “time excludable for one defendant is excludable for all defendants.” United States v. Jarrell, 147 F.3d 315, 316 (4th Cir.1998); see also United States v. Gutierrez, 48 F.3d 1134, 1136 (10th Cir.1995) (recognizing delay resulting from codefendant’s motion as excludable). In order for a delay resulting from a continuance to be excludable, the court is to explain, “either orally or in writing, its reasons for finding” that the ends of justice served by granting the continuance outweigh the interests of the public and the defendant. § 3161(h)(7)(A). Kellam first appeared before the magistrate judge on September 12, 2006, and her trial was initially scheduled for November 21, 2006. Several continuances, pretrial motions, and hearings thereafter occurred. At the conclusion of the March 22, 2007 hearing, the district court denied relief on the speedy trial motion, explaining its ruling in the following terms: The simple fact is, ... Ms. Kellam did file a variety of motions. I think all three are identified, motions that resulted in time being excluded, but by my calculations, still, just these standing alone would have been insufficient to bring her case within the Speedy Trial Act, had it not been" }, { "docid": "19002150", "title": "", "text": "II. Discussion A. Speedy Trial Act Violation The Speedy Trial Act (“the Act”) provides that no more than 70 days may elapse between a defendant’s initial appearance in court and the commencement of trial. 18 U.S.C. § 3161(c)(1). The district court made no factual findings regarding how many countable days elapsed, and the parties dispute the proper method of calculation. “We review the district court’s denial of Speedy Trial Act motions de novo when calculation of time is at issue.” United States v. Baskin-Bey, 45 F.3d 200, 203 (7th Cir.1995). Although a total of 126 days elapsed between Parker’s first appearance in court and the commencement of his trial, not all of this time counts toward the Act’s 70-day limitation. The parties agree that the delay attributable to pleas by Parker’s code-fendants is excluded. See 18 U.S.C. § 3161(h)(7) (excluding “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted”); United States v. Dennis, 737 F.2d 617, 620 (7th Cir.1984) (“It is well established ... that the excludable delay of one defendant may be ascribed to all codefendants in the same case, absent severance.”). The parties also agree that the time lost due to the judge’s medical absence is not excludable because the judge did not follow the procedures necessary to stop the Speedy Trial clock. See 18 U.S.C. § 3161(h)(8) (requiring court to make findings on the record to exclude a delay resulting from court’s own motion); cf. Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 1990, 164 L.Ed.2d 749 (2006) (“[WJhen a district court makes no findings on the record in support of a[] § 3161(h)(8) continuance, harmless-error review is not appropriate.”). The undisputed exclusions thus total 46 days, which brings the uncontested elapsed time to 80 countable days. Where Parker and the government part ways is on the question of when the Speedy Trial Act clock began to run. Parker maintains the clock started on October 20 — the date of his" }, { "docid": "16706229", "title": "", "text": "see also Zedner v. United States, 547 U.S. 489, 497-98, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). The one exclusion relevant to Wasson’s appeal is § 3161(h)(7)(A), which provides that the following periods of delay should be excluded: Any period of delay resulting from a continuance ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). Section 3161(h)(7)(B) also sets forth four nonexhaustive factors which the court “shall consider” in determining whether to grant an ends-of-justice continuance. In particular, subsection (7)(B)(ii) directs the judge to consider “[wjhether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.” As detailed above, the district court relied on the ends of justice and the complex nature of the case when it repeatedly continued Wasson’s trial date. The parties agree that the speedy trial clock began running when Wolgamot was arraigned on May 11, 2007. It is also undisputed that between that date and the commencement of trial on March 2, 2009, 224 days were automatically excluded for the handling of the defendants’ fourteen pretrial motions. See 18 U.S.C. § 3161(h)(1)(D) (excluding delay “resulting from any pretrial motion” from its filing through its disposition); Hills, 618 F.3d at 626-27 (upholding automatic excludability of time between filing and resolution of pretrial" }, { "docid": "19998142", "title": "", "text": "U.S.C. §§ 3161-3174, violation. “We review the district court’s findings of fact as they pertain to a speedy trial challenge for clear error and its legal conclusions de novo.” United States v. Oberoi, 547 F.3d 436, 443 (2d Cir.2008) (internal quotation marks omitted). The STA mandates the “dismissal of charges against a defendant who is not indicted, arraigned, or brought to trial within periods of time set forth in the statute.” Id. (internal quotation marks omitted). The trial must begin within seventy days of the indictment. See 18 U.S.C. § 3161(c)(1). Notably, however, “the Act contemplates the exclusion of certain periods of delay ... from the calculation.” Oberoi, 547 F.3d at 443. Some exclusions are automatic. See, e.g., 18 U.S.C. § 3161(h)(1). Other exclusions require judicial action. For instance, the STA provides for exclusion if the district court “sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A) ; see also Zedner v. United States, 547 U.S. 489, 508, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006); Parisi v. United States, 529 F.3d 134, 139-40 (2d Cir .2008). Defendant argues that there were no proper STA continuances covering the period of May 20, 2005 through July 28, 2005. In particular, Defendant claims that while the May 20, 2005 status conference referenced “exclusion,” with respect to a given time period, there was no required “ends of justice” finding under 18 U.S.C. § 3161(h)(7). The Government contends that even if the May 20 exclusion was invalid under 18 U.S.C. § 3161(h)(7), because the District Court did not make an “ends of justice” finding, it was valid under 18 U.S.C. § 3161(h)(1), which permits exclusions for a nonexclusive list of “other proceedings concerning the defendant.” This is so, the Government contends, because the May 20 exclusion was given to permit time for plea negotiations. Several other circuits have indicated that plea negotiations can trigger the 18 U.S.C." }, { "docid": "19795231", "title": "", "text": "Act. United States v. George, 85 F.3d 1433, 1436 (9th Cir.1996); United States v. Springer, 51 F.3d 861, 864 (9th Cir.1995). We review for abuse of discretion a district court’s decision to dismiss an indictment without prejudice for a violation of the Speedy Trial Act. United States v. Taylor, 487 U.S. 326, 332, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). We review the district court’s findings of fact for clear error. Id. at 337, 108 S.Ct. 2413. DISCUSSION A. Excludable Periods of Delay The Speedy Trial Act generally requires that trial begin within 70 days of a defendant’s indictment or first appearance before a judicial officer, whichever occurs later. 18 U.S.C. § 3161(c)(1). If trial does not begin within the requisite time period and the defendant moves for dismissal before trial, the court must dismiss the indictment, either with or without prejudice. Id. § 3162(a)(2). But other provisions of the Speedy Trial Act allow for tolling of the 70-day limit in specified circumstances. One such provision permits the district court to exclude “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Id. § 3161(h)(1)(D). Another provision excludes a “reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” Id. § 3161(h)(6). Section 3161(h)(7) excludes delays resulting from a continuance when the court finds that the “ends of justice served by taking [that] action outweigh the ... interest of the public and the defendant in a speedy trial.” The factors, among others, that a court must consider in deciding whether to grant a continuance under this section are: (i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice. (ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence" }, { "docid": "11456797", "title": "", "text": "complied with the Speedy Trial Act and that the district court made adequate findings supporting the various ends-of-justice continuances, I respectfully dissent. I concur with the majority’s disposition of the Sixth Amendment speedy trial claim. I. “[C]riminal cases vary widely and ... there are valid reasons for greater delay in particular cases”; therefore, the Speedy Trial Act offers “flexibility” by including “a long and detailed list of periods of delay that are excluded in computing the time within which trial must start.” Zedner v. United States, 547 U.S. 489, 497, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Examples of relevant exclusions include a “reasonable period of delay” attributable to a proceedings of a co-defendant, 18 U.S.C. § 3161(h)(6), and delay attributable to an ends-of-justice continuance. 18 U.S.C. § 3161(h)(7). “Much of the Act’s flexibility is furnished by § 3161(h)[ (7) ], which governs ends-of-justice continuances.” Zedner, 547 U.S. at 498, 126 S.Ct. 1976. This provision excludes “[a]ny period of delay resulting from a continuance granted by any judge ... on the basis of ... findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” § 3161(h)(7). It “gives the district court discretion — within limits ... — to accommodate limited delays for case-specific needs.” Zedner, 547 U.S. at 499, 126 S.Ct. 1976. As we have repeatedly emphasized, in granting an ends-of-justice continuance, the district court must set forth, “in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” § 3161(h)(7)(A); United States v. Williams, 511 F.3d 1044, 1056 (10th Cir. 2007) (“The Tenth Circuit [] recognizes the importance of enunciating the ends of justice findings.”) (citation omitted). “[I]t must be clear from the record that the trial court struck the proper balance when it granted the continuance.” Williams, 511 F.3d at 1056 (citing United States v. Spring, 80 F.3d 1450, 1456 (10th Cir.1996)). Although" }, { "docid": "9065183", "title": "", "text": "magistrate judge and the district court made the statutorily mandated findings necessary to exclude Defendant's time spent in plea negotiations under 18 U.S.C. § 3161(h)(7). This holding is also unpersuasive. By its terms, 18 U.S.C. § 3161(h)(7)(A) permits a court to exclude a period of time by granting an ends-of-justice continuance only if \"the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.\" The provision explains that \"no such period of delay resulting from a continuance granted by the court ... shall be excludable under this subsection unless the court sets forth in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.\" Id. Section 3161(h)(7)(B) then lists \"[t]he factors, among others, which a judge shall consider\" in determining whether to grant an ends-of-justice continuance. Thus, § 3161(h)(7)\"is explicit.\" Zedner v. United States , 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). \"[W]ithout the on-the-record-findings, there can be no exclusion.\" Id. \"[I]f a judge fails to make the requisite findings regarding the need for the ends-of-justice continuance, the delay resulting from the continuance must be counted, and if as a result the trial does not begin on time, the indictment or information must be dismissed.\" Id. at 508, 126 S.Ct. 1976. In this way, § 3161(h)(7)\"gives the district court discretion-within limits and subject to specific procedures-to accommodate limited delays for case-specific needs.\" Id. at 499, 126 S.Ct. 1976. As the Supreme Court has explained: The exclusion of delay resulting from an ends-of-justice continuance is the most open-ended type of exclusion recognized under the [Speedy Trial] Act and, in allowing district courts to grant such continuances, Congress clearly meant to give district judges a measure of flexibility in accommodating unusual, complex, and difficult cases. But it is equally clear that Congress, knowing that" }, { "docid": "16706228", "title": "", "text": "Speedy Trial Act. See 18 U.S.C. §§ 3161-74. We review the district court’s legal interpretations of the Act de novo, and its decisions to exclude time for an abuse of discretion. See, e.g., United States v. Hills, 618 F.3d 619, 625 (7th Cir.2010). Unless the defendant shows legal error, we will reverse the district court’s decision to exclude time only where the defendant can show both an abuse of discretion and actual prejudice. Id.; see also United States v. Broadnax, 536 F.3d 695, 698 (7th Cir.2008) (“[Ejxclusions of time cannot be reversed except when there is an abuse of discretion by the court and a showing of actual prejudice.”). Generally speaking, the Act requires a federal criminal trial to commence within 70 days after the defendant is charged or makes an initial appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1). However, in recognition of the realities of widely varying and potentially complex criminal trials, the Act sets forth a number of allowable delays that may be excluded from the seventy-day clock. 18 U.S.C. § 3161(h); see also Zedner v. United States, 547 U.S. 489, 497-98, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). The one exclusion relevant to Wasson’s appeal is § 3161(h)(7)(A), which provides that the following periods of delay should be excluded: Any period of delay resulting from a continuance ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). Section 3161(h)(7)(B) also sets forth four nonexhaustive factors which the court “shall consider” in determining whether to grant" }, { "docid": "13996676", "title": "", "text": "time period may be tolled for certain -reasons enumerated in the Act, which include when the district court grants an ends-of-justice continuance. That is, the court may grant a continuance of the trial date when the “ends of justice” support doing so. The Act therefore excludes, in relevant part, [a]ny period of delay resulting from a continuance granted by any judge ... if the judge granted such' continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests óf the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). . The Act also explains that in granting an ends-of-justice continuance, the court must -consider certain factors, including , (1) whether the, failure to grant the continuance would “result ■ in a miscarriage of justice,” 18 U.S.C. § 3161(h)(7)(B)©; (2) whether due to the nature of -the case (or other factors, including the number of de fendants) the case is too complex to reasonably expect adequate preparation within the time limits, 18 U.S.C.' § 3161(h)(7) (B) (ii); or (3) whether a refusal to continue the case would deny the defendant “reasonable time to obtain counsel” or would unreasonably deny either party “the reasonable time, necessary for effective preparation,” 18 U.S.C. § 3161(h)(7)(B)(iv). The court may not, however, grant a continuance “because of general congestion of the court’s .calendar.” 18 U.S.C. § 3161(h)(7)(C). The Supreme Court has interpreted these provisions to mean that “the Act requires express findings,” which must be made on the record. See Zedner v. United States, 547 U.S. 489, 506-07, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Likewise, we have previously instructed, “[w]hen considering such" }, { "docid": "4277454", "title": "", "text": "that (1) defense counsel’s performance was deficient, ie., counsel’s “representation fell below an objective standard of reasonableness” as measured by “prevailing professional norms,” and (2) defendant was prejudiced thereby, ie., “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Applying the applicable standards, we affirm, albeit for reasons different than those the district court tendered in denying Defendant’s motion. I. To secure the accused’s right to and the public’s interest in the prompt resolution of pending charges, the STA requires that a criminal trial commence “within seventy days from the filing date ... of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which the charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1). But because no two cases are alike and some, for a myriad of reasons, are slower to trial than others, included within the STA is “a long and detailed list of periods of delay that are excluded in computing the time within which trial must start.” Zedner v. United States, 547 U.S. 489, 497, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Experience suggests that the provision courts and counsel most often employ to toll the running of the STA’s time clock is the “ends-of-justiee” continuance provided for in § 3161(h)(7). Subsection (h)(7)(A) permits a district court, sua sponte or upon motion, to continue a trial setting and exclude the delay, provided the court, after considering at a minimum the factors set forth in subsections (h)(7)(B)®, (ii), and (iv), places on the record “either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). “Without on-the-record findings there can be no exclusion under § 3161(h)( [7]).” Zedner, 547 U.S. at 507, 126 S.Ct. 1976. In United States v. Doran, 882" }, { "docid": "4277455", "title": "", "text": "the STA is “a long and detailed list of periods of delay that are excluded in computing the time within which trial must start.” Zedner v. United States, 547 U.S. 489, 497, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Experience suggests that the provision courts and counsel most often employ to toll the running of the STA’s time clock is the “ends-of-justiee” continuance provided for in § 3161(h)(7). Subsection (h)(7)(A) permits a district court, sua sponte or upon motion, to continue a trial setting and exclude the delay, provided the court, after considering at a minimum the factors set forth in subsections (h)(7)(B)®, (ii), and (iv), places on the record “either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). “Without on-the-record findings there can be no exclusion under § 3161(h)( [7]).” Zedner, 547 U.S. at 507, 126 S.Ct. 1976. In United States v. Doran, 882 F.2d 1511, 1515 (10th Cir.1989), we explained that subsection (h)(7)’s “exception to the otherwise precise requirements of the [STA] was meant to be a ‘rarely used’ tool for those cases demanding more flexible treatment.” Since at least United States v. Gonzales, 137 F.3d 1431, 1434-35 (10th Cir.1998), we have insisted that where a district court grants an “ends-of-justice” continuance pursuant to § 3161(h)(7), the court articulate in some detail its reasons for doing so, lest it engender misuse of the exception. To such end, we have reasoned that “[a] record consisting of only short, conclusory statements lacking in detail is insufficient.... Simply identifying an event, and adding a conclusory statement that the event requires more time for counsel to prepare, is not enough.” United States v. Toombs, 574 F.3d 1262, 1271-72 (10th Cir.2009). Because subsection (h)(7)(A) dictates that the district court grant an “ends-of-justice” continuance only “on the basis of its findings,” the appropriate time for the court to place its findings on the record is just prior to or contemporaneously with the grant of" }, { "docid": "20512546", "title": "", "text": "excludes time through the period of its prompt disposition, but only if that period does not exceed thirty days from the date the motion is taken under advisement.” United States v. Williams, 511 F.3d 1044, 1048 (10th Cir.2007). As noted in Part I, supra, time is also excludable when the district court grants a continuance upon a finding that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A); accord Watson, 766 F.3d at 1229. Ends-of-justice continuances afford the district court a modicum of flexibility in managing particularly complex or difficult cases. See Zedner, 547 U.S. at 508, 126 S.Ct. 1976. Nevertheless, “[w]e have repeatedly noted that an ends-of-justice continuance is ‘meant to be a rarely used tool for those cases demanding more flexible treatment,’ ” Banks, 761 F.3d at 1175 (quoting Toombs, 574 F.3d at 1269), and that such continuances “should not be granted cavalierly,” id. (quoting Williams, 511 F.3d at 1049) (internal quotation marks omitted). B We first consider Mr. Margheim’s argument that the temporal gap between his initial appearance and that of his final codefendant effected an unreasonable delay. The relevant statutory provision excludes “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” 18 U.S.C. § 3161(h)(6) (emphasis added). -The general rule is that “[a]ll defendants who are joined for trial ... fall within the speedy trial computation of the latest codefendant.” Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). In this case, the “latest” codefendant appeared on May 24, 2011, which postdates Mr. Margheim’s initial appearance (July 14, 2010) by ten months. Mr. Margheim contends that this time period is not a “reasonable” delay within the meaning of § 3161(h)(6) of the Act and, as such, is not excludable. In determining whether delay attributable to a codefendant is reasonable, a court must examine all relevant circumstances." } ]

[ { "docid": "22658137", "title": "", "text": "litigation costs and therefore discourage employers from creating benefit plans. See, e. g., Brief for American Council of Life Insurance et al. as Amici Curiae 10-11. Because even under the arbitrary and capricious standard an employer’s denial of benefits could be subject to judicial review, the assumption seems to be that a de novo standard would encourage more litigation by employees, participants, and beneficiaries who wish to assert their right to benefits. Neither general principles of trust law nor a concern for impartial decisionmaking, however, forecloses parties from agreeing upon a narrower standard of review. Moreover, as to both funded and unfunded plans, the threat of increased litigation is not sufficient to outweigh the reasons for a de novo standard that we have already explained. As this case aptly demonstrates, the validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of terms in the plan at issue. Consistent with established principles of trust law, we hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Because we do not rest our decision on the concern for impartiality that guided the Court of Appeals, see 828 F. 2d, at 143-146, we need not distinguish between types of plans or focus on the motivations of plan administrators and fiduciaries. Thus, for purposes of actions under § 1132(a)(1)(B), the de novo standard of review applies regardless of whether the plan at issue is funded or unfunded and regardless of whether the administrator or fiduciary is operating under a possible or actual conflict of interest. Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “facto[r] in determining whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959). Ill Respondents unsuccessfully sought plan information from Firestone pursuant to 29" } ]

[ { "docid": "23588617", "title": "", "text": "does not provide the standard to review decisions of a plan administrator or fiduciary. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.Ct. 948, 953, 103 L.Ed.2d 80 (1989). Instead, the United States Supreme Court in Firestone established a spectrum of standards: a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “facto[r] in determining whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959). Firestone, 489 U.S. at 115, 109 S.Ct. at 957. We apply the Firestone range of standards to interpretations of ambiguous plan provisions. Brown v. Blue Cross & Blue Shield, 898 F.2d 1556-68 (11th Cir.1990); Newell v. Prudential Ins. Co. of Am., 904 F.2d 644, 650 (11th Cir.1990). Acknowledging the standards of review set forth in Firestone, this Court in Brown crafted an additional, more stringent standard of review for circumstances where the decisionmaker suffers a conflict of interest. Brown, 898 F.2d at 1566; Newell, 904 F.2d at 651. Therefore, we have three standards of review for plan interpretations: (1) de novo, applicable where the plan administrator is not afforded discretion; (2) arbitrary and capricious where the plan administrator possesses discretion; and (3) heightened arbitrary and capricious where there is a conflict of interest. BellSouth’s Interpretation of the Plan BellSouth argues on appeal that this case involves both a plan interpretation and a factual finding. Having briefly addressed the standards of review for plan interpretations, we first decide whether BellSouth correctly interpreted the plan. Primarily, the parties dispute on appeal the meaning of “disability” for sickness disability benefits. BellSouth.argues that the plan requires “total disability” for sickness disability benefits. The plan does not specify whether the claimant must be totally disabled and unable to work or whether" }, { "docid": "22349151", "title": "", "text": "Pension Plan’s summary plan description, which states that the NYNEX Committee serves as the “final review committee” with regard to claims under the Pension Plan. While the Bruch Court did not set forth any talismans by which a plan could trigger the highly deferential “arbitrary and capricious” standard of review, see Jordan, 46 F.3d at 1269, we believe, as did the district court, that NYNEX’s Pension Plan makes absolutely clear that the NYNEX Committee has broad discretion to determine eligibility issues. Thus, the NYNEX Committee’s decision to deny Pagan long-term disability benefits must be affirmed unless it was arbitrary and capricious. Pagan contends that we should not apply this deferential standard because the NYNEX Committee acted under a conflict of interest. Specifically, Pagan notes that NYNEX funds the Pension Plan from current operating revenues, giving NYNEX an apparent incentive to deny benefits. Moreover, Pagan points out that the members of the NYNEX Committee serve in dual roles, both as the Pension Plan’s administrators and as NYNEX employees. See Brown v. Blue Cross and Blue Shield of Ala., 898 F.2d 1556, 1561-68 (11th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991); Zisel v. Prudential Ins. Co. of America, 845 F.Supp. 949, 951 n. 3 (E.D.N.Y.1994) (“It is undisputed that the Plan at issue here is self-funded by Sears and that the Administrator is a Sears executive. Consequently, it is clear that the Administrator is operating under a conflict of interest.”). Bruch instructs us, however, that the existence of such an alleged conflict does not operate to change the standard of review, but rather becomes “a facto[r] in determining whether there is an abuse of discretion.” Bruch, 489 U.S. at 115, 109 S.Ct. at 957 (quotation omitted). Accordingly, we review the NYNEX Committee’s decision under the arbitrary and capricious standard, irrespective of whether the NYNEX Committee was operating under a possible or actual conflict of interest. See Heidgerd v. Olin Corp., 906 F.2d 903, 908 (2d Cir.1990). Under the arbitrary and capricious standard of review, we may overturn a decision to deny benefits only if it was" }, { "docid": "12817127", "title": "", "text": "the policy proceeds of $150,000, plus prejudgment and post-judgment interest. “The denial of benefits was arbitrary and capricious,” the District Court ruled, “and the Plaintiff is entitled to the death benefit due under the Plan.” Buce v. National Service Industries, Inc., et al., 74 F.Supp.2d 1272, 1280 (N.D.Ga.1999). Finding no “breach of fiduciary duty,” id., on the part of ASRM and NSI, the District Court directed the entry of judgment in favor of those defendants. In ruling against Allianz, the District Court came to a series of conclusions: (A) The first issue addressed by the District Court was the standard of review under which it was to judge the correctness of Allianz’s denial of benefits. The District Court noted that the Supreme Court, in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), had held that “a denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan .... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘factofr] in determining whether there is an abuse of discretion.’ ” In the case at bar, the District Court found that de novo review was not an option, since the policy’s Summary Plan Description provided that “[t]he insurance company has the exclusive right to interpret the provisions of the Plan, so its decision is conclusive and binding.” 74 F.Supp.2d at 1275. The District Court pointed out, however, that, in conformity with Firestone ’s admonition about conflicts of interest, the very deferential “arbitrary and capricious” standard requires modification where the insurance carrier is the effective decision-maker. As the District Court observed, this court has had several occasions to address this problem, most notably in Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, cert. denied, 498 U.S. 1040, 111 S.Ct." }, { "docid": "23616118", "title": "", "text": "of the plan.... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “factor[ ] in determining whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959). Firestone, 489 U.S. at -, 109 S.Ct. at 956-57. The district court correctly concluded that because the Prudential plan in question gives Prudential some degree of discretion in determining whether charges would be deemed necessary and eligible, Firestone would sanction the continued application of the arbitrary and capricious standard to the instant case. See also Brown v. Blue Cross & Blue Shield, 898 F.2d 1556, 1558 & n. 1 (11th Cir.1990); Jett v. Blue Cross & Blue Shield, 890 F.2d 1137, 1138 (11th Cir.1989); Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37, 38 (11th Cir.1989). The district court further found that Prudential did not operate under a conflict of interest by having its employee, Dr. Goldart, render claims decisions; thus the district court saw no need to temper the arbitrary and capricious test to consider a conflict that the court believed did not exist. In this conclusion we differ. This court declared in a most recent decision that [o]ur task is to develop a coherent method for integrating factors such as self-interest into the legal standard for reviewing benefits determinations. This task reaches the height of difficulty in a case such as the one before us, where an insurance company serves as the deci-sionmaking fiduciary for benefits that are paid out of the insurance company’s assets.... ... Because an insurance company pays out to beneficiaries from its own assets rather than the assets of a trust, its fiduciary role lies in perpetual conflict with its profit-making role as a business _ We conclude ... that a “strong conflict of interest [exists] when the fiduciary making a discretionary decision is also the insurance company responsible for paying the claims.... ” Jader v. Principal Mutual Life Ins. Co., 723 F.Supp. 1338, 1343 (D.Minn.1989). The inherent conflict between the fiduciary" }, { "docid": "22349152", "title": "", "text": "of Ala., 898 F.2d 1556, 1561-68 (11th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991); Zisel v. Prudential Ins. Co. of America, 845 F.Supp. 949, 951 n. 3 (E.D.N.Y.1994) (“It is undisputed that the Plan at issue here is self-funded by Sears and that the Administrator is a Sears executive. Consequently, it is clear that the Administrator is operating under a conflict of interest.”). Bruch instructs us, however, that the existence of such an alleged conflict does not operate to change the standard of review, but rather becomes “a facto[r] in determining whether there is an abuse of discretion.” Bruch, 489 U.S. at 115, 109 S.Ct. at 957 (quotation omitted). Accordingly, we review the NYNEX Committee’s decision under the arbitrary and capricious standard, irrespective of whether the NYNEX Committee was operating under a possible or actual conflict of interest. See Heidgerd v. Olin Corp., 906 F.2d 903, 908 (2d Cir.1990). Under the arbitrary and capricious standard of review, we may overturn a decision to deny benefits only if it was “without reason, unsupported by substantial evidence or erroneous as a matter of law.” Abnathya v. Hoffman-La Roche, Inc., 2 F.3d 40, 45 (3d Cir.1993) (quotation omitted); see also Bowman Transp., Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974) (“A reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”) (quotation omitted). This scope of review is narrow, thus we are not free to substitute our own judgment for that of the NYNEX Committee as if we were considering the issue of eligibility anew. See Bowman, 419 U.S. at 285, 95 S.Ct. at 442; Jordan, 46 F.3d at 1271 (“The court may not upset a reasonable interpretation by the administrator.”) (citations omitted). As discussed above, the NYNEX Committee rested its decision to deny Pagan long-term benefits under the Pension Plan on Pagan’s failure to satisfy the plan’s requirement of receipt of “52 weeks of Sickness Disability Benefits under the [applicable] Sickness" }, { "docid": "16311124", "title": "", "text": "addition to the standards we use to evaluate the district court’s order, we must also address the appropriate standard with which the court should review Blue Cross’s denial of benefits under the ERISA plan it administers. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 108-15, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). “Although ERISA gives a plan beneficiary the right to judicial review of benefit denials, the statute did not establish the standard of review for such decisions.” Chambers v. Family Health Plan Corp., 100 F.3d 818, 824-25 (10th Cir.1996). In Firestone, the Supreme Court held that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone, 489 U.S. at 115, 109 S.Ct. 948. In this case, the plan states that “[t]he Board of Trustees of Blue Cross and Blue Shield of Oklahoma is authorized to determine, and in its discretion, to alter the Benefits provided by this Contract.” Thus, the plan expressly gives Blue Cross as plan administrator the discretion to determine whether to deny a claimant insurance benefits under the plan. Therefore, because the plan grants Blue Cross discretion, “[a] court reviewing a challenge to a denial of employee benefits ... applies an ‘arbitrary and capricious’ standard to a plan administrator’s actions.” Charter Canyon Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135 (10th Cir.1998). However, if a plan administrator is operating under a conflict of interest, “the court may weigh that conflict as a factor in determining whether the plan administrator’s actions were arbitrary and capricious.” Id. “[T]he Tenth Circuit has adopted a sliding scale, decreasing the level of deference in proportion to the severity of the conflict.” Jones, 169 F.3d at 1291. The conflict, then, is weighed as one factor in determining whether the plan administrator’s decision was arbitrary and capricious. See Firestone, 489 U.S. at 115, 109 S.Ct. 948; Jones, 169 F.3d at 1291. Pitman contends that Blue Cross was" }, { "docid": "15479756", "title": "", "text": "argues that its decision was neither arbitrary nor capricious and, therefore, that it is entitled to summary judgment on plaintiffs claim of wrongful denial. “A denial of benefits under an ERISA plan must be reviewed de novo ‘unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’ ” Lee v. Blue Cross/Blue Shield of Ala., 10 F.3d 1547, 1549 (11th Cir.1994) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). Where the plan does give such discretion to the administrator or fiduciary, the court “must review ... [a] denial of benefits ... under the arbitrary and capricious standard.” Id. at 1550. In the instant action, the relevant plan expressly gives such discretion to defendant: The Hartford has full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy. See Defendant’s Exhibit 3, p. 3. Therefore, the court reviews defendant’s decision under the arbitrary and capricious standard. Under this standard, the court is to determine whether, given the evidence available to the fiduciary, the claims decision was made rationally and in good faith, not whether it was “right.” Griffis v. Delta Family Care Disability Plan, 723 F.2d 822, 825 (11th Cir.1984); Lee, 10 F.3d at 1550. In this case, however, because defendant was also the underwriter of the plan, the claims decision is subject to a more searching analysis. See, e.g., Lee 10 F.3d at 1549-50; Newell v. Prudential Ins. Co., 904 F.2d 644 (11th Cir.1990); Anderson v. Blue Cross/Blue Shield of Ala., 907 F.2d 1072 (11th Cir.1990). Under this heightened standard, the court must determine whether plaintiff has proposed a sound interpretation to rival that of the underwriter. Brown v. Blue Cross and Blue Shield of Ala., 898 F.2d 1556, 1570 (11th Cir.1990); Lee 10 F.3d at 1550. “[A] wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected" }, { "docid": "1551522", "title": "", "text": "must conduct, pursuant to Rule 52, Federal Rules of Civil Procedure, a bench trial based on the administrative record and such other evidence as the Court admits. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir.) (en banc) cert. den. 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999). II. Parties’ Motions A. ERISA Standard of Review ERISA provides Plaintiff with a federal cause of action to recover the benefits she claims are due under the Plan. 29 U.S.C. § 1132(a)(1)(B). The standard of review of a plan administrator’s denial of ERISA benefits depends upon the terms of the benefit plan. Absent contrary language in the plan, the denial is reviewed under a de novo standard. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). However, if “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” an abuse of discretion standard is applied. Id.; Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471 (9th Cir.1993). Where discretionary authority has been granted to the plan administrator, the Ninth Circuit has applied an “arbitrary and capricious” standard in determining whether the plan administrator abused its discretion. McKenzie v. General Telephone Co. of California, 41 F.3d 1310, 1314 (9th Cir.1994); Taft, 9 F.3d at 1471, n. 2 (use of the term “arbitrary and capricious” versus “abuse of discretion” is a “distinction without a difference”). Here, the plan grants Liberty discretion to interpret the policy, as well as the power to decide eligibility for benefits. Because the plan grants Liberty this discretionary authority, an arbitrary and capricious or abuse of discretion standard should be applied, unless a conflict of interest triggers the less deferential standard. See, e.g., Taft, 9 F.3d at 1471. If “a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115, 109 S.Ct. 948." }, { "docid": "539212", "title": "", "text": "is not significantly probative, then summary judgment may be granted. Id. 477 U.S. at 249-50. B. Discussion 1. Standard of Review The first issue faced by the Court in this case is whether to apply an abuse of discretion or a de novo standard of review to Standard’s determination denying further benefits to Newman under the Plan. Although ERISA itself does not expressly specify the'standard of review to be applied by district courts in reviewing challenged denials of benefits, the Supreme Court addressed this issue in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). There, the Court held that a denial of ERISA benefits in cases like the one at bar is “to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the Plan.” Id. 489 U.S. at 115. Thus, the proper standard of review turns exclusively on whether or not Standard had discretionary authority under the terms of the Plans. In this case, Plaintiff concedes that the Plan granted discretionary authority to Standard. (Pl.’s Resp. to Defs.’ Stmt. Uncontroverted Facts ¶¶2-4.) This discretion includes the “full and exclusive authority to control and manage the Group Policy, to administer claims, and to interpret the Group Policy and resolve[ ] all questions arising in thé administration, interpretation, and application of the Group Policy.” (Id. ¶ 3.) Therefore, under Firestone, the abuse of discretion standard would apply. However, the fact that Standard is both the plan administrator and the funding source complicates matters considerably. As the Ninth Circuit recently stated: The Plan in this case, is actually an insurance policy issued and administered by Standard. Given Standard’s dual role as both the funding source and the administrator of the Plan, we are faced with an inherent conflict of interest situation, and must take this factor into account. Brown [v. Blue Cross & Blue Shield], 898 F.2d [1556,] 1561 [ (11th Cir.1990) ] (“Because an insurance company pays out to beneficiaries from its own" }, { "docid": "15479755", "title": "", "text": "(citations omitted). Analysis In its motion for summary judgment, defendant raises two arguments for consider ation by the court. Plaintiff has not responded to the first of defendant’s arguments but has responded in opposition to the second argument. Defendant first argues that plaintiff’s state law claims are preempted by ERISA. The court agrees. The court has previously denied plaintiffs motion to remand due to ERISA preemption. See Order of April 25, 1995. As to plaintiffs state law claims, the court finds that they are preempted by ERISA. See generally Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Therefore, this portion of defendant’s motion for summary judgment is hereby GRANTED. Next, defendant argues that it is entitled to summary judgment as to the propriety of its decision to deny plaintiffs claim for total disability benefits. Defendant argues that its decision was neither arbitrary nor capricious and, therefore, that it is entitled to summary judgment on plaintiffs claim of wrongful denial. “A denial of benefits under an ERISA plan must be reviewed de novo ‘unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’ ” Lee v. Blue Cross/Blue Shield of Ala., 10 F.3d 1547, 1549 (11th Cir.1994) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). Where the plan does give such discretion to the administrator or fiduciary, the court “must review ... [a] denial of benefits ... under the arbitrary and capricious standard.” Id. at 1550. In the instant action, the relevant plan expressly gives such discretion to defendant: The Hartford has full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy. See Defendant’s Exhibit 3, p. 3. Therefore, the court reviews" }, { "docid": "22139704", "title": "", "text": "Co., 320 F.3d 1260, 1267 (11th Cir.2003). B. ERISA Review Standard ERISA provides no standard for reviewing decisions of plan administrators or fiduciaries. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Shaw v. Connecticut Gen. Life Ins. Co., 353 F.3d 1276, 1282 (11th Cir.2003); Marecek v. Bell-South Telecomms., Inc., 49 F.3d 702, 705 (11th Cir.1995). But Firestone established three distinct standards for reviewing administrators’ plan decisions: “(1) de novo where the plan does not grant the administrator discretion [i.e., does not exercise discretion in deciding claims;] (2) arbitrary and capricious [where] the plan grants the administrator [such] discretion; and (3) heightened arbitrary and capricious where [the plan grants the administrator such discretion but] ... [he has] ... a conflict of interest.” HCA Health Servs. of Geor gia., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993 (11th Cir.2001) (quoting Buckley v. Metro. Life, 115 F.3d 936, 939 (11th Cir.1997)); Shaw, 353 F.3d. at 1282. Williams contends that, because Bell-South both funded and administered the disability benefits plan, a conflict of interest existed, so the district court erred by not reviewing the denial of benefits using the “heightened” arbitrary and capricious standard. We note that in most cases where .a company .both administers and funds a plan, a conflict of interest arises, thus triggering heightened arbitrary and capricious review. See Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, 1562 (11th Cir.1990); Yochum v. Barnett Banks, Inc. Severance Pay Plan, 234 F.3d 541, 544 (11th Cir.2000); Levinson v. Reliance Standard Ins. Co., 245 F.3d 1321, 1325-26 (11th Cir.2001) (Where administrator of benefits plan governed by ERISA pays out to participants out of its own assets, a conflict of interest exists between its fiduciary rule and its profit-making role, and accordingly, a heightened arbitrary and capricious standard applies in reviewing administrator’s discretionary denial of benefits under the plan). But here BellSouth — though it retained the role of “plan administrator” — employed Kemper as its “claim administrator.” Kemper processed and decided claims that BellSouth would pay out." }, { "docid": "12817128", "title": "", "text": "to determine eligibility for benefits or to construe the terms of the plan .... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘factofr] in determining whether there is an abuse of discretion.’ ” In the case at bar, the District Court found that de novo review was not an option, since the policy’s Summary Plan Description provided that “[t]he insurance company has the exclusive right to interpret the provisions of the Plan, so its decision is conclusive and binding.” 74 F.Supp.2d at 1275. The District Court pointed out, however, that, in conformity with Firestone ’s admonition about conflicts of interest, the very deferential “arbitrary and capricious” standard requires modification where the insurance carrier is the effective decision-maker. As the District Court observed, this court has had several occasions to address this problem, most notably in Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991), and Buckley v. Metropolitan Life, 115 F.3d 936 (11th Cir.1997). In Buckley, so the District Court noted, we said that the less deferential “heightened arbitrary and capricious standard must be used when the plan was administered by an insurance company which paid benefits out of its own assets.” 115 F.3d at 939. Applying these teachings to the role of Allianz in relation to Mrs. Buce’s claim, the District Court concluded that the case before it was controlled by Brown v. Blue Cross and Blue Shield of Alabama, Inc. “There, Blue Cross determined whether it would pay benefits from its own coffers — an inherent and obvious conflict of interest. The situation here differs only slightly with ASRM evaluating Plaintiffs claim for its only client and then a final decision by Allianz. Therefore, the Court may review the determination of benefits under the heightened arbitrary and capricious standard.” 74 F.Supp.2d at 1276. The impact of this ruling was, according to the District Court, that: “First, the Court must determine whether under" }, { "docid": "14463593", "title": "", "text": "to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” in which event an arbi trary and capricious standard is appropriate. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Here, both parties agree that the policy grants defendant discretionary authority and that the arbitrary and capricious standard is therefore appropriate in this case. See Caldwell v. Life Ins. Co. of N. Am., 959 F.Supp. 1361, 1365 (D.Kan.1997) (policy requiring insurer to pay when it receives “due proof’ of entitlement to benefits conveys discretionary authority and invokes the arbitrary and capricious standard of review). The court agrees with plaintiff that the court’s deference to defendant’s decisions is not unlimited, given defendant’s conflict of interest in this matter. If an ERISA plan gives discretion to a fiduciary acting under a conflict of interest, that conflict may be a factor for the court’s consideration. Firestone, 489 U.S. at 115, 109. S.Ct. 948. The Tenth Circuit has held that “the degree of deference to accord such a decision will be decreased on a sliding scale in proportion to the' extent of conflict present, recognizing the arbitrary and capricious standard is inherently flexible.” McGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253, 1258 (10th Cir. 1998); accord Chambers v. Family Health Plan Corp., 100 F.3d 818, 825 (10th Cir.1996) (level of deference to the decision is decreased in proportion to the seriousness of the conflict). In the present case, a conflict of interest is present because every decision in this case by defendant in determining whether it would pay plaintiff benefits affected defendant financially. See McGraw, 137 F.3d at 1258-59 (“[B]ecause every exercise of discretion impacts Prudential financially, filling or depleting its coffers,- we afford its decisions less deference depending on the degree of conflict manifest.”). Thus, the court affords defendant a lesser amount of deference. Accordingly, the court must determine whether defendant’s denials of plaintiffs claims were arbitrary and capricious. Indi-cia" }, { "docid": "14521818", "title": "", "text": "months). Thus, for purposes of this issue, there was only a possibility of a conflict of interest, and not enough to trigger any heightened review. For that reason, I conclude that the arbitrary and capricious standard applies. However, I will address the issue of a heightened standard of review further for completeness. Initially, it is well established that, when an ERISA plan grants the administrator discretion, the administrator’s factual determinations are subject to an arbitrary and capricious standard of review. See Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1450 (11th Cir.1997). Likewise, when an ERISA plan gives the administrator discretionary authority, an arbitrary and capricious standard of review is to be applied to review the administrator’s interpretation of the plan’s terms. However, under the principles of trust law, the Supreme Court has recognized that the arbitrary and capricious standard of review must be heightened when the administrator interpreting those terms has a conflict of interest. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 957, 103 L.Ed.2d 80 (1989). The conflict of interest that must be addressed is the situation in which “an insurance company serves as ERISA fiduciary to a plan composed solely of a policy or contract issued by that company.” Brown v. Blue Cross & Blue Shield, 898 F.2d 1556, 1561 (11th Cir.1990). In such a situation, the fiduciary “is exercising discretion over a situation for which it incurs ‘direct, immediate expense as a result of benefit determinations favorable to [p]lan participants.’ ” Id. (citing de Nobel v. Vitro Corp., 885 F.2d 1180, 1191 (4th Cir.1989)). Therefore, when reviewing the fiduciary’s construction of plan terms “the degree of deference actually exercised in application of the [arbitrary and capricious] standard will be significantly diminished.” Brown, supra, 898 F.2d at 1568. To effectuate what has become known as a “heightened” arbitrary and capricious standard of review, the Eleventh Circuit has applied a burden shifting analysis, which requires the administrator to prove that its construction of its own plan’s terms was not tainted by self-interest. See id. at 1565-68. However, neither the" }, { "docid": "22284582", "title": "", "text": "L.Ed.2d 80 (1989); Lee v. Blue Cross/Blue Shield of Alabama, 10 F.3d 1547, 1549 (11th Cir.1994). If the plan reserves that discretion to the Fund, the arbitrary and capricious standard of review applies, see Firestone, 489 U.S. at 115, 109 S.Ct. at 956-57, unless the Fund’s construction “would advance a conflicting interest of [the Fund] at the expense of the affected beneficiary.” Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, 1566-67 (11th Cir.1990). If such a conflict of interest is shown, the burden shifts to the Fund to demonstrate that its interpretation of the plan is not tainted by self-interest. Lee, 10 F.3d at 1552; Brown, 898 F.2d at 1566. Genesis claims that the Fund’s decision creates a conflict of interest, but we agree with the district court that there is no conflict in this case. Conflicts arise when a fiduciary or administrator pays benefits to participants and beneficiaries from its own assets; an example is an insurance company administering an ERISA plan that the company also insures. See Brown, 898 F.2d at 1561. In that situation, the insurance company’s role as administrator “lies in perpetual conflict with its profit-making role as a business.” Id. In contrast, the Fund is a nonprofit entity, and benefits are paid out of a trust funded from the contributions of several employers. In such an arrangement, the Fund’s decision to require a signed subrogation agreement merely protects the assets in the trust for other participants and beneficiaries. That requirement does not benefit the Fund (ie., the trustees) in any way which could create a conflict of interest at the expense of a plan participant or beneficiary. Since there is no conflict of interest in this case, either the de novo or the arbitrary and capricious standard applies, depending upon whether the plan documents give the Fund sufficient discretion. The Fund argues that it is provided sufficient discretion to interpret the plan in the Trust Agreement and in the Rules and Regulations. In opposition, both Genesis and Bruner argue that the plan’s Summary Plan Description (“SPD”), not other plan documents," }, { "docid": "23279621", "title": "", "text": "and AIG as fiduciaries with authority to control and manage the operation and administration of the Plan. The SPD, which sets forth the terms of both the BTA policy and the 24-Hour policy, gives Marriott sole, absolute, and final discretion to determine eligibility for benefits and to resolve any factual issues relevant to benefit eligibility or benefit enrollment. It also grants AIG sole, absolute, and final discretion to construe the terms of the Plan. No magic words are required to confer discretion. See Donato, 19 F.3d at 379. The terms of the Plan provide the fiduciaries with discretionary authority. See Chojnacki v. Georgia-Pacific Corp., 108 F.3d 810, 815 (7th Cir.1997). As a result, we review Marriott’s resolution of factual issues and AIG’s construction of the terms of the Plan under the arbitrary and capricious standard of review. 2. . Mers argues that we should apply a more strict version of the arbitrary and capricious standard when an ERISA plan affords deference to a fiduciary that has a conflict of interest in awarding benefits. Her theory is that an inherent conflict of interest exists when a company sponsored plan allows an insurance company to interpret its own policies. She suggests that since an insurance company pays benefit claims out of its own assets, “its fiduciary role lies in perpetual conflict with its profit-making role as a business.” Brown v. Blue Cross & Blue Shield, Inc., 898 F.2d 1556, 1561 (11th Cir.1990). The district court concluded that AIC was operating under a conflict of interest. It afforded the Plan’s decision less deference and viewed the Plan’s decision to deny coverage for Dale Mers’ death with greater suspicion. In making this determination, however, the district court presumed that Mers’ request presented AIC with a conflict. Because we disagree with this presumption, we deny Mers’ request for a reduction in deference. While some courts have found that a denial of benefits is presumptively void and must be reviewed de novo where a similar conflict may exist, see Brown, 898 F.2d at 1561, we have not. See Chalmers v. Quaker Oats Co., 61 F.3d 1340," }, { "docid": "23235218", "title": "", "text": "so long as the applicant has a full and fair opportunity for review of the initial decision. ERISA does not provide a standard to review decisions of a plan administrator or fiduciary. The Supreme Court has held that a range of standards may apply to benefits determinations under the statute. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.Ct. 948, 953, 103 L.Ed.2d 80 (1989). Accordingly, this court has adopted the following standards for reviewing administrators’ plan interpretations: (1) de novo where the plan does not grant the administrator discretion, (2) arbitrary and capricious when the plan grants the administrator discretion; and (3) heightened arbitrary and capricious where there is a conflict of interest. Marecek v. BellSouth Telecommunications, Inc., 49 F.3d 702, 705 (11th Cir.1995). In this case, the parties agree that the Plan vests the Committee with discretion in making benefits determinations. The Third Circuit has also reached that conclusion with respect to HLR’s LTD Plan. See Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir.1993). Therefore, unless there is a conflict of interest, the arbitrary and capricious standard should be applied at least to the Committee’s interpretations of the Plan provisions. Buckley argues that this court’s holding in Brown v. Blue Cross & Blue Shield of Alabama, Inc., 898 F.2d 1556, supports her claim that a conflict of interest exists in this case. In Brown, a panel of this court held that the heightened arbitrary and capricious standard must be used when the plan was administered by an insurance company which paid benefits out of its own assets. “Because an insurance company pays out to beneficiaries from its own assets rather than the assets of a trust, its fiduciary role lies in perpetual conflict with its profit-making role as a business.” Id. at 1561. As the district court found, however, that is not the ease here. Under the Plan, benefits are paid from a trust funded through periodic, nonreversionary contributions by HLR. As the Third Circuit noted with respect to this Plan, “Hoffmann ... incurs no direct expense as a result" }, { "docid": "23616117", "title": "", "text": "the Prudential procedure of having its own employee make determinations of medical need does not violate ERISA as a matter of law. In rejecting this theory of liability against Prudential, we also dispose of Newell’s request for remand for consideration of class certification based on this misperceived violation of ERISA. B. While we are in accord with the district court in its judgment that “Prudential did not arbitrarily and capriciously deny plaintiff’s claims for benefits after January [25], 1987,” Newell, 725 F.Supp. at 1240, we must reevaluate that conclusion applying the heightened scrutiny for arbitrariness and caprice appropriate in cases involving a conflict of interest rather than the simple arbitrary and capricious standard used by the district court. The Supreme Court in Firestone clarified the standard for reviewing denials of benefits in ERISA plans, holding that a denial of benefits challenged under § 1132(a)(1)(B)[ ] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “factor[ ] in determining whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959). Firestone, 489 U.S. at -, 109 S.Ct. at 956-57. The district court correctly concluded that because the Prudential plan in question gives Prudential some degree of discretion in determining whether charges would be deemed necessary and eligible, Firestone would sanction the continued application of the arbitrary and capricious standard to the instant case. See also Brown v. Blue Cross & Blue Shield, 898 F.2d 1556, 1558 & n. 1 (11th Cir.1990); Jett v. Blue Cross & Blue Shield, 890 F.2d 1137, 1138 (11th Cir.1989); Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37, 38 (11th Cir.1989). The district court further found that Prudential did not operate under a conflict of interest by having its employee, Dr. Goldart, render claims decisions; thus the district" }, { "docid": "22284581", "title": "", "text": "Nancy Bruner’s execution of the Fund’s subrogation agreement. Bruner urges us to affirm the district court’s decision granting summary judgment in her favor on the ground that the subrogation agreement expands the Fund’s subrogation rights beyond those set forth in the plan. In its argument for reversal, the Fund contends that it may condition the payment of benefits on the execution of the agreement, because the agreement is not an arbitrary interpretation of its subrogation rights under the plan. 1. The Standard of Review of the Fund’s Decision As an initial matter, we must decide the proper standard of review of the Fund’s interpretation of the plan. The parties agree that this case should be treated as a denial-of-benefits case. In such a case, the Fund’s (conditional) denial of ERISA benefits is subject to de novo review, unless “the benefit plan gives [the Fund] discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989); Lee v. Blue Cross/Blue Shield of Alabama, 10 F.3d 1547, 1549 (11th Cir.1994). If the plan reserves that discretion to the Fund, the arbitrary and capricious standard of review applies, see Firestone, 489 U.S. at 115, 109 S.Ct. at 956-57, unless the Fund’s construction “would advance a conflicting interest of [the Fund] at the expense of the affected beneficiary.” Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, 1566-67 (11th Cir.1990). If such a conflict of interest is shown, the burden shifts to the Fund to demonstrate that its interpretation of the plan is not tainted by self-interest. Lee, 10 F.3d at 1552; Brown, 898 F.2d at 1566. Genesis claims that the Fund’s decision creates a conflict of interest, but we agree with the district court that there is no conflict in this case. Conflicts arise when a fiduciary or administrator pays benefits to participants and beneficiaries from its own assets; an example is an insurance company administering an ERISA plan that the company also insures. See Brown," }, { "docid": "3131372", "title": "", "text": "Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law governing this matter is the Employees Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., pursuant to which this lawsuit is brought. See 29 U.S.C. § 1132(a)(l)(B)(participant or beneficiary may bring suit to recover benefits due under an ERISA-governed benefits plan). In Firestone Tire & Rubber Co. v. Bruch, the United States Supreme Court held that a claim regarding a denial of benefits is reviewed under an arbitrary and capricious standard if “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Third Circuit only recently acted to dispel confusion created by certain questions left unanswered by the Supreme Court in Bruch, in a case concerning the same defendant-insurer at bar. See Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377 (3d Cir.2000). The policy at issue in Pinto is conceded to be the same as the policy owned by Dr. Lasser’s employer with respect to the role of the Plan Administrator. In an earlier, unreported decision, the Court of Appeals held that this policy confers discretion on the fiduciary, thus triggering Bruch’s deferential standard of review. Pinto v. Reliance Standard Life Ins. Co., 156 F.3d 1225 (3d Cir.1998). In Bruch, the High Court suggested that deference might, however, not be appropriate where the fiduciary had an conflict of interest with respect to the decision of whether to award benefits. 489 U.S. at 115, 109 S.Ct. 948. In Pinto, the Court of Appeals addressed the problem of the inherent conflict, where the fiduciary’s decision to award benefits will come at a direct cost to the fiduciary itself. The inherent conflict problem is presented in its classic form where an insurance company both administrates plan benefits and pays those benefits from its own funds. Bruch, having identified the problem, conspicuously failed to offer guidance in evaluating the benefits decisions of such conflicted fiduciaries. From a variety of" } ]

[ { "docid": "4347857", "title": "", "text": "claim 1, including the step of blending a fine binder material with said liquid asphalt and aggregate material within said zone isolated from said hot gas stream. C. Confidentiality Agreement The contract involved in this case is a nondisclosure agreement for consulting and technical services dated May 13, 1986. Prior thereto, Standard Havens had contacted General Combustion Corporation, a wholly owned subsidiary of Gencor, to obtain consulting services in the design and manufacture of a burner for Standard Havens’ proposed counterflow asphalt plant based upon the method described in the Hawkins ’938 patent. The nondisclosure agreement required Gencor to maintain as confidential the information obtained from Standard Havens. D. Litigation Standard Havens initially sued Gencor for breach of the nondisclosure agreement. Gencor counterclaimed, seeking a declaratory judgment that the Hawkins patent was invalid. In response, Standard Havens charged Gencor with contributing to or inducing infringement of the ’938 patent, particularly via production of its asphalt-producing “Ultraplant.” Trial was conducted for thirteen days before a jury. The jury answered a special verdict form, finding that the claimed invention was neither anticipated nor would have been obvious, see 35 U.S.C. §§ 102, 103 (1988), that Gencor had contributed to and induced infringement of the ’938 patent, and that Standard Havens had been damaged by that infringement in the amount of $5,931,000 (covering sales of ten asphalt plants from the time the patent issued in 1988 until trial in 1989). Regarding the confidentiality agreement, the jury found that a valid contract existed between Standard Havens and Gencor, and that Standard Havens had fulfilled its obligations under the contract, but that Gencor had not fulfilled its obligations. The jury found Standard Havens damaged in the amount of $2,284,000 by breach of the contract, covering sales of five asphalt plants from May, 1986 until the patent issued and the value of lost profits from future parts sales. Judgment, including a permanent injunction, was entered against Gencor on August 8, 1989. Gencor filed motions for judgment notwithstanding the verdict (JNOV) and alternatively for a new trial contending, inter alia, anticipation and obviousness of the invention in" } ]

[ { "docid": "1379538", "title": "", "text": "Standard Havens' allegation of patent infringement stated: “Defendant has directly or contributorily infringed, or has induced others to infringe, one or more of the claims of the Hawkins patent, and such infringement by Defendant has been willful.\" Standard Havens Products, Inc.’s Reply to Gencor Industries, Inc.'s Counterclaim, para. 8 (Part 4 of Gencor's Appendix and Notice of Filing in Support of Motions for Summary Judgment (Dkt. 56)). .Even though Standard Havens sued Gencor for direct patent infringement, that theory apparently was not submitted to the jury. Gencor was found liable for contributory infringement and inducement to infringe. Hence, Gencor's liability for direct patent infringement is no longer an issue. . Contrary statements in Merchants Co. v. American Motorists Ins. Co., 794 F.Supp. 611, 617 (S.D.Miss.1992), are of questionable validity in light of Sentry Ins. v. R.J. Weber Co., 2 F.3d at 557. . This allegation was reasserted in paragraph 12 of Standard Havens’ First Amended Complaint. . As a result, the Court need not decide what quantum of trial evidence would suffice to trigger the duty to defend. .The Court disagrees with the statement in Merchants Co. v. American Motorists Ins. Co., 794 F.Supp. 611, 618 (S.D.Miss.1992), that the phrase \"advertising injury” is ambiguous. When viewed in the context of the subject insurance contracts, none of the policy terms discussed herein are ambiguous. . It is not necessary for the Court to consider the Wausau defendants’ (or any other defendant's) alternative arguments that there is no coverage (1) as a result of the \"known loss” doctrine and (2) because the damages assessed against Gencor were for the restitution of uninsurable \"ill-gotten gains.” Accordingly, the Court does not address those issues." }, { "docid": "1379520", "title": "", "text": "Havens initially sued Gencor for breach of a confidential relationship and unfair competition. Gencor responded by challenging the validity of a patent held by Standard Havens, and by filing a counterclaim seeking a declaration that the patent was invalid and/or unenforceable. In reply to Gencor’s counterclaim, Standard Havens alleged that Gencor had directly or contributorily infringed, or induced others to infringe, one or more of the claims of the subject patent. At trial, Standard Havens prevailed on its claims that Gencor had contributed to infringement of Standard Havens’ patent, had induced infringement of the patent, and had breached its contract with Standard Havens. On appeal, the United States Court of Appeals for the Federal Circuit affirmed the district court’s judgment that the patent was infringed and was not invalid, vacated the contract and patent damage awards, and remanded the case for further proceedings related to damages. Standard Havens Products, Inc. v. Gencor Industries, Inc., 953 F.2d 1360, 1376 (Fed.Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 60, 121 L.Ed.2d 28 (1992). III.THE LANGUAGE OF THE INSURANCE POLICIES The 1986 policy issued by Travelers Indemnity Company, and the 1987 policy issued by Travelers Indemnity Company of Illinois, define “advertising injury” as follows: “Advertising injury” means injury arising out of an offense committed during the policy period occurring in the course of the Named Insured’s advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title or slogan. The policy issued by National Union Fire Insurance Company of Pittsburgh, Pa. defines “advertising injury” as “injury arising out of one or more of the following offenses”: a. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; b. Oral or written publication of material that violates a person’s right of privacy; e. Misappropriation of advertising ideas or style of doing business; or d. Infringement of copyright, title or slo-gen [sic]. The 1988 and 1989 policies issued by Employers Insurance of Wausau provide, in pertinent part, as" }, { "docid": "1379532", "title": "", "text": "never submitted to the jury. The fact that it was asserted in the pleadings is, at this point, of no moment. Based on the foregoing, the Court determines that Gencor’s motions for summary judgment against Travelers Indemnity Company and Travelers Indemnity Company of Illinois will be denied. VI. GENCOR’S MOTION FOR SUMMARY JUDGMENT AGAINST WAU-SAU UNDERWRITERS INSURANCE COMPANY (DKT. 44) The “Amendment Endorsement” to the policy issued by Wausau Underwriters lists “patent infringement” as an “advertising injury” offense. In this respect, that policy is different from those issued by the other insurer defendants. However, as under the other policies, coverage is afforded only if a listed offense is committed in the course of the insured’s “advertising activities.” The Amendment Endorsement defines “advertising activities” as “wide spread distribution of material promoting your goods, products or services.” As previously discussed, there is no indication that Gencor committed patent infringement in the course of any advertising activities. Accordingly, this insurer is not obligated to defend Gencor, and there is no coverage under the policy. Gencor’s motion for summary judgment against Wausau Underwriters Insurance Company will be denied. VII. WAUSAU UNDERWRITERS INSURANCE COMPANY AND EMPLOYERS INSURANCE OF WAU-SAU’S CROSS-MOTION FOR SUMMARY JUDGMENT (DKT. 67) Based on the reasoning set forth in parts IV and VI of this Memorandum Decision and Order, the Wausau defendants are not obligated to defend Gencor, and the Wausau policies do not cover Gencor’s patent infringement liability to Standard Havens. Accordingly, the Wausau defendants are entitled to final summary judgment against Gen-cor. VIII. TRAVELERS INDEMNITY COMPANY AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS’ CROSS-MOTION FOR SUMMARY JUDGMENT (DKT. 80) Based on the reasoning set forth in part V of this Memorandum Decision and Order, the Travelers defendants are not obligated to defend Gencor, and the Travelers policies do not cover Gencor’s liability to Standard Havens. These motions will be granted. IX.TRAVELERS INDEMNITY COMPANY AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS’ MOTION FOR SUMMARY JUDGMENT (DKT. 38) This motion seeks summary judgment on the basis of late notice to the moving insurers. Because the Travelers defendants are entitled to summary judgment on other" }, { "docid": "3184363", "title": "", "text": "in light of recent published authority that is on-point. 8. There being no triable issues of material fact to bar entry of partial summary judgment, pursuant to Federal Rule of Civil Procedure 56, the Court hereby GRANTS Plaintiffs motion for partial summary judgment. 9. By this motion, Plaintiff seeks a determination by the Court that Defendant has a contractual duty to defend Plaintiff based on the existence of potential coverage under the Policy for the Hall action asserted against Plaintiff. Plaintiff also seeks a determination that Defendant is liable to pay all reasonable defense costs incurred by it in defense of the Hall action. 10. Plaintiff contends that Defendant owes it a duty to defend upon a showing of facts establishing a potential for coverage under its policy, because the Policy does not expressly provide for coverage of patent infringement claims. The Policy requires Defendant to pay damages resulting from an “advertising injury” defined as follows: “Advertising injury” means injury arising out of an offense committed during the policy period in the course of the named insured’s advertising activities, if such injury arises out of. libel, slander, defamation, violation of right of privacy, piracy, unfair competition or infringement of copyright, title or slogan. Insurance Policy attached as Exhibit A to Second Amended Complaint, at 74 (emphasis added). 11. In the same section of the policy, the insurer specifies that the advertising injury coverage does not extend to: (1) Publication or utterances of defamatory or disparaging material, (2) infringement of trademark, service marks, etc., by the use thereof on or in connection with goods, products or services sold, offered for sale, or advertised, and (3) injuries arising out of acts committed by the insured with actual malice. 12. Thus, while the insurance policy at issue contains no express reference to patent infringement, the Court FINDS that the term “piracy” encompasses patent infringement. See National Union Fire Ins. Co. v. Siliconix Inc., 729 F.Supp. 77 (N.D.Cal.1989) (involving insurance contract containing definition of “advertising injury” identical to that contained in Charter Oak Insurance contract). The Court further FINDS that Plaintiffs advertising activities were" }, { "docid": "1379531", "title": "", "text": "‘unfair competition’ is limited to claims under the common law and excludes statutory claims.” Bank of the West v. Superior Court, 2 Cal.4th 1254, 10 Cal.Rptr.2d 538, 544, 833 P.2d 545, 551 (1992); see also Aetna Casualty & Surety Co. v. Superior Court, 19 Cal.App.4th 320, 327, 23 Cal.Rptr.2d 442 (1993) (rejecting trial court’s holding, before Bank of the West, that unfair competition could include inducing patent infringement), review denied (Cal.1994). Hence, in the context of these insurance policies, “unfair competition” does not include patent infringement. Even if Gencor could successfully shoehorn the underlying patent infringement claims into one or more of the listed advertising injury offenses, the requisite causal link between infringement and advertisement is absent. See Part IV of this Memorandum Decision and Order. Gencor also argues that the Travelers companies must defend Gencor because Standard Havens’ initial complaint asserted a claim of unfair competition. This argument overlooks the fact that Gencor’s liability to Standard Havens has now been established, and that liability does not include unfair competition. That particular claim apparently was never submitted to the jury. The fact that it was asserted in the pleadings is, at this point, of no moment. Based on the foregoing, the Court determines that Gencor’s motions for summary judgment against Travelers Indemnity Company and Travelers Indemnity Company of Illinois will be denied. VI. GENCOR’S MOTION FOR SUMMARY JUDGMENT AGAINST WAU-SAU UNDERWRITERS INSURANCE COMPANY (DKT. 44) The “Amendment Endorsement” to the policy issued by Wausau Underwriters lists “patent infringement” as an “advertising injury” offense. In this respect, that policy is different from those issued by the other insurer defendants. However, as under the other policies, coverage is afforded only if a listed offense is committed in the course of the insured’s “advertising activities.” The Amendment Endorsement defines “advertising activities” as “wide spread distribution of material promoting your goods, products or services.” As previously discussed, there is no indication that Gencor committed patent infringement in the course of any advertising activities. Accordingly, this insurer is not obligated to defend Gencor, and there is no coverage under the policy. Gencor’s motion for summary" }, { "docid": "7863179", "title": "", "text": "OPINION BOYCE F. MARTIN, JR., Chief Judge. Herman Miller, Inc., challenges summary judgment granted in favor of The Travelers Indemnity Company. The district court ruled that Herman Miller was not entitled to reimbursement from Travelers for costs of defending and settling a claim brought by Haworth, Inc., alleging contributory and/or induced patent infringement. Herman Miller claims specifically that the district court erred by concluding that the policy’s definition of an “advertising injury” for which indemnification is warranted does not include liability arising from patent infringement. Because the policy does not contain mention of such liability yet does expressly incorporate other forms of infringement liability, it cannot be reasonably construed to include coverage for patent infringement liability. We therefore affirm the district court. Haworth and Herman Miller design and produce modular office systems, paneling and furnishings. Haworth holds patents on, among other things, a configuration of power supply modules within pre-fabricated office panels. In its promotional literature, Herman Miller pictured a configuration of panels that, if so assembled, would have infringed Haworth’s patent. Haworth sued Herman Miller, and the latter requested that its insurer, Travelers, defend it in the action based upon their contract obligating Travelers to indemnify and defend Herman Miller for any damages “caused by an ... ‘advertising injury.’” According to the contract, “ ’advertising injur/ means injury arising out of the named insured’s advertising, promotional or publicity activities conducted during the policy period, because of libel, slander, piracy, unfair competition, idea misappropriation, or infringement of copyright, title or slogan.” Travelers declined to defend or indemnify Herman Miller for its costs in settling the suit brought by Haworth. Herman Miller then sued Travelers in Michigan state court seeking approximately $48 million in damages. The action was removed under 28 U.S.C. §§ 1441, 1446 to the United States District Court for the Western District of Michigan. The district court found that the terms of the policy were unambiguous and did not provide for indemnification arising out of patent infringement and therefore granted summary judgment in favor of Travelers. We review orders granting summary judgment de novo, Brooks v. American Broadcasting" }, { "docid": "1379519", "title": "", "text": "MEMORANDUM DECISION AND ORDER CONWAY, District Judge. I.INTRODUCTION Plaintiff Gencor sues five insurers, seeking a declaration that under certain liability insurance policies, the insurers must defend Gencor in the ease of Standard Havens Products, Inc. v. Gencor Industries, Inc. and E.J. Elliott, Case No. 88-1209-CV-W-3, pending in the United States District Court for the Western District of Missouri, and must indemnify Gencor for any damages assessed against Gencor in that case. More particularly, Gencor contends that Standard Havens’ claims of patent infringement and inducement to infringe seek damages covered under the “advertising injury” provisions of the six policies of insurance issued by the defendants. The insurers deny that they have a duty to defend or to indemnify Gencor under the terms of the policies. Gencor has filed a motion for summary judgment against each of the insurers. All but one of the insurers have filed motions for summary judgment, and the remaining insurer has moved to dismiss. These, and related motions, are before the Court for consideration. II.THE UNDERLYING ACTION In the underlying action, Standard Havens initially sued Gencor for breach of a confidential relationship and unfair competition. Gencor responded by challenging the validity of a patent held by Standard Havens, and by filing a counterclaim seeking a declaration that the patent was invalid and/or unenforceable. In reply to Gencor’s counterclaim, Standard Havens alleged that Gencor had directly or contributorily infringed, or induced others to infringe, one or more of the claims of the subject patent. At trial, Standard Havens prevailed on its claims that Gencor had contributed to infringement of Standard Havens’ patent, had induced infringement of the patent, and had breached its contract with Standard Havens. On appeal, the United States Court of Appeals for the Federal Circuit affirmed the district court’s judgment that the patent was infringed and was not invalid, vacated the contract and patent damage awards, and remanded the case for further proceedings related to damages. Standard Havens Products, Inc. v. Gencor Industries, Inc., 953 F.2d 1360, 1376 (Fed.Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 60, 121 L.Ed.2d 28 (1992). III.THE LANGUAGE OF THE" }, { "docid": "1379530", "title": "", "text": "Court has already addressed “infringement of title” in the preceding section of this Memorandum Decision and Order. The rationale for rejecting Gencor’s “infringement of title” argument applies equally to the “offenses” of “piracy” and “unfair competition.” It is absurd to suggest that “piracy” and “unfair competition” encompass any form of patent infringement, considering that the word “patent” does not appear in the immediately antecedent clause “or infringement of copyright, title or slogan.” Moreover, as used in insurance policies covering advertising injury, the term “piracy” means “misappropriation or plagiarism found in the elements of the advertisement itself — in the text, form, logo, or pictures— rather than in the product being advertised.” Iolab Corp. v. Seaboard Surety Co., 15 F.3d 1500, 1506 (9th Cir.1994) (emphasis in original). “While patent infringement can be piracy of the advertised product, generally it is not piracy of the elements of the advertising itself.” Id. Hence, “piracy” does not embrace Standard Havens’ patent infringement claims. Additionally, “the majority of published opinions ... hold that insurance coverage for ‘advertising injury due to ‘unfair competition’ is limited to claims under the common law and excludes statutory claims.” Bank of the West v. Superior Court, 2 Cal.4th 1254, 10 Cal.Rptr.2d 538, 544, 833 P.2d 545, 551 (1992); see also Aetna Casualty & Surety Co. v. Superior Court, 19 Cal.App.4th 320, 327, 23 Cal.Rptr.2d 442 (1993) (rejecting trial court’s holding, before Bank of the West, that unfair competition could include inducing patent infringement), review denied (Cal.1994). Hence, in the context of these insurance policies, “unfair competition” does not include patent infringement. Even if Gencor could successfully shoehorn the underlying patent infringement claims into one or more of the listed advertising injury offenses, the requisite causal link between infringement and advertisement is absent. See Part IV of this Memorandum Decision and Order. Gencor also argues that the Travelers companies must defend Gencor because Standard Havens’ initial complaint asserted a claim of unfair competition. This argument overlooks the fact that Gencor’s liability to Standard Havens has now been established, and that liability does not include unfair competition. That particular claim apparently was" }, { "docid": "6527151", "title": "", "text": "is committed during the policy period within the policy territory, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such injury even if any of the allegations of the suit are groundless, false, or fraudulent.... Advertising Offense Liability insurance does not apply: 5. to advertising offense arising out of b. infringement of trademark, service mark or trade name, other than titles or slogans, by use thereof on or in connection with goods, products or services sold, offered for sale or advertised.... Joint App. at 138 (emphasis added). An “advertising offense” is defined as: [an] injury occurring in the course of the named insured’s advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title, or slogan. Joint App. at 139 (emphasis added). The policy does not define “unfair competition.” In granting summary judgment to the Insurer, the district court in the case at hand stated: The underlying litigation relates to two trademarks, “PDS” and “PDS and Design,” both of which had been used by Parameter in connection with its computer programs for business applications. Personnel[ ] challenged Parameter’s use of “PDS” and “PDS and Design,” and filed a petition in 1990 with the Trademark Trial and Appeal Board (Board) in an effort to preclude its further use of the challenged trademarks. On September 13, 1991, the Board agreed with Personnel and can-celled Parameter’s right to use the two trademarks. Two federal lawsuits immediately followed. The first case was initiated on October 23, 1991 by Personnel who sued Parameter in the Eastern District of Pennsylvania for false designation of origin, unfair competition, common law trademark infringement and trade name infringement.[ ] Shortly thereafter, Parameter filed a lawsuit against Personnel in the Eastern District of Michigan, seeking, inter alia, a declaratory judgment that it had concurrent rights with Parameter [sic] to use the trademarks. Personnel counterclaimed with accusations that parallelled its claims in the Eastern District of Pennsylvania (to wit, false designation of origin, common law trademark" }, { "docid": "1379529", "title": "", "text": "Summary Judgment (Dkt. 80), at 5-6, and Gencor’s Memorandum of Law in Opposition to Travelers’ Cross-Motion for Summary Judgment (Dkt. 90). Hence, even if contributory infringement and inducement were included in advertising “offenses” listed in the policies, there is no indication that Gencor committed those wrongs in the course of advertising or advertising activities. Based on the foregoing, the Court determines that these insurers have no obligation to defend Gencor under the subject insurance policies. Further, Gencor’s liability to Standard Havens for patent infringement is not covered under the policies. Accordingly, Gencor’s motions for summary judgment against National Union and Employers In- . surance of Wausau will be denied. V. GENCOR’S MOTIONS FOR SUMMARY JUDGMENT AGAINST TRAVELERS INDEMNITY COMPANY (DKT. 50) AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS (DKT. 52) Gencor contends that patent infringement and inducement to infringe constitute the “offenses” of “infringement of title”, “piracy” and “unfair competition”, as those terms are used in the “advertising injury” definition in the insurance policies issued by the two Travelers companies. The Court rejects these arguments. The Court has already addressed “infringement of title” in the preceding section of this Memorandum Decision and Order. The rationale for rejecting Gencor’s “infringement of title” argument applies equally to the “offenses” of “piracy” and “unfair competition.” It is absurd to suggest that “piracy” and “unfair competition” encompass any form of patent infringement, considering that the word “patent” does not appear in the immediately antecedent clause “or infringement of copyright, title or slogan.” Moreover, as used in insurance policies covering advertising injury, the term “piracy” means “misappropriation or plagiarism found in the elements of the advertisement itself — in the text, form, logo, or pictures— rather than in the product being advertised.” Iolab Corp. v. Seaboard Surety Co., 15 F.3d 1500, 1506 (9th Cir.1994) (emphasis in original). “While patent infringement can be piracy of the advertised product, generally it is not piracy of the elements of the advertising itself.” Id. Hence, “piracy” does not embrace Standard Havens’ patent infringement claims. Additionally, “the majority of published opinions ... hold that insurance coverage for ‘advertising injury due to" }, { "docid": "7140107", "title": "", "text": "“Personal Injury” was defined in the policies as a liability for damages because of: “The publication or utterance of a libel or slander or other defamatory or disparaging material, or a publication or utterance in violation of rights of privacy, except when any of the foregoing of this part ... arises out of the insured’s advertising activities ...” The umbrella policy also covered “advertising liability” which was defined as liability for damages because of: (a) libel, slander or defamation; (b) infringement of copyright or of title or of slogan; (c) piracy or unfair competition or idea misappropriation under an implied contract; (d) invasion of rights of privacy; which occur during a policy period, and arising out of the named insured’s advertising activities. The policies excluded liability for “infringement of registered trademark, service mark or trade name by use thereof as the registered trademark, service mark or trade name of goods or services sold, offered for sale or advertised, but this shall not relate to titles or slogans,” or for “incorrect description of any article or commodity.” Lastly, Aetna provided excess or umbrella coverage to International Identification between June, 1981 and June, 1982, covering liability for personal injury, property damage, or advertising offense. Its policy limits were $1,000,000. Personal injury was defined, in part, as “except with respect to injury occurring in the course of a named insured’s advertising activities, inju ry arising out of the publication or utterance of a libel or slander or other defamatory or disparaging material ...” But, like the Atlantic and Centennial policies, Aetna also provided coverage for advertising offenses which were defined as: “Injury occurring in the course of the named insured’s advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title or slogan (other than a patent).” Aet-na, like the other excess insurers (Centennial and Atlantic), promised to provide a defense to any suit seeking damages which were not payable under the terms of certain other insurance policies, including the policies issued by Cincinnati and Great American, either “because such" }, { "docid": "23372621", "title": "", "text": "injury.... (B) The insurance does not apply: (6) to advertising injury arising out of (a) failure of performance of contract, but this exclusion does not apply to the unauthorized appropriation of ideas based upon alleged breach of implied contract.... (D) Additional Definitions “Advertising Injury” means injury arising out of an offense committed during the policy period occurring in the [ ] course of the named insured’s advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title or slogan. “Personal Injury” means injury arising out [of] one or more of the following offenses committed during the policy period: (2) wrongful entry or eviction or other invasion of the right of private occupancy. ... The umbrella policy’s insuring agreement states: 3.1 COVERAGES. The Company will pay on behalf of the Insured for ultimate net loss in excess of the retained limit which the Insured by reason of liability imposed upon the Insured by law or assumed by the Insured under any contract or agreement, shall become legally obligated to pay as damages because of Personal Injury Liability or Property Damage Liability or Advertising Offense Liability to which this policy applies, caused by an occurrence. The umbrella policy provides the following definitions: 2.1 “Advertising Offense” means libel, slander, defamation, infringement of copyright or of title or of slogan, piracy, unfair competition, idea misappropriation or invasion of rights of privacy committed or alleged to have been committed during the policy period, arising out of the Insured’s advertising activities. 2.9 “Personal Injury” means any of the following acts or offenses which occur during the policy period, including death and care and loss of service resulting therefrom: (d) wrongful entry or eviction, or other invasion of the right of private occupancy. ... Coverage is excluded under the umbrella policy “with respect to advertising offense, to damages resulting from (a) breach of contract other than an implied contract to pay for the misappropriation of an idea.” C. Procedural History After the underlying lawsuits were brought, Stanford tendered its defense and indemnity to Maryland." }, { "docid": "23680355", "title": "", "text": "and Double R marketed their products to equipment ‘ manufacturers, which then sold completed lighting fixtures to retail stores. In November 1994, Inter-Global and DAL filed suit against Double R in the United States District Court for the Eastern District of Missouri alleging - patent infringement and unfair competition. The suit subsequently was transferred to the Middle District of Florida. The complaint alleged three causes of action: direct patent infringement; indirect or contributory infringement; and unfair competition in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The Lanham Act claim alleged that Double R had used artwork from Inter-Global’s brochures in its advertisements and designated its products using model numbers similar to those used by Inter-Global. The case proceeded to trial in November 1998. The jury found in favor of Double R on the direct and indirect patent infringement counts, but found for Inter-Global and DAL on the Lanham Act claim. The jury also found that Double R had acted willfully. Accordingly, it awarded DAL and Inter-Global $400,000 in damages. That award was modified by the district court in February 1999 to include $206,892 in prejudgment interest, for a total judgment of $606,892. Subsequently, Double R sought indemnity for the judgment from Nationwide Mutual Fire Insurance Co., the insurance company from which it had purchased a commercial general liability insurance policy in December 1992. The policy provides coverage for “ ‘[advertising injury’ caused by an offense committed in the course of advertising [Double R’s] goods, products or services.” It defines “advertising injury” to include: injury arising out of one or more of the following offenses: a. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organizations’ goods, products or services; b. Oral or written publication of material that violates a person’s right of privacy; c. Misappropriation of advertising ideas or style of doing business; or d. Infringement of copyright, title or slogan. The “advertising injury” coverage is subject to the following exclusions: This insurance does not apply to: a. “Personal injury” or “advertising injury:” (1) Arising" }, { "docid": "1379528", "title": "", "text": "the pleadings. See Trizec Properties v. Biltmore Const. Co., 767 F.2d 810, 811 (11th Cir.1985). However, this case is atypical. Gencor did not put its insurers on notice until after its liability to Standard Havens had been fixed. The parties are thus well beyond mere allegations. By the time these insurers learned of Standard Havens “claim” against Gencor, trial and entry of judgment had already taken place. The appeal has been concluded, and the only remaining issues relate to damages. Further, Gencor was not found liable on the unfair competition count (in which it was alleged that Gencor “offered” its own asphalt plant to the industry). Under these circumstances, the appropriate inquiry is whether there was evidence at trial that Gencor committed contributory infringement and inducement in the course of advertising or advertising activities. Gencor has not identified any such evidence. Further, Gencor has not even attempted to controvert other defendants’ contentions that no such evidence was presented at trial. See The Travelers’ Cross-Motion for Summary Judgment and Response in Opposition to Geneor’s Motion for Summary Judgment (Dkt. 80), at 5-6, and Gencor’s Memorandum of Law in Opposition to Travelers’ Cross-Motion for Summary Judgment (Dkt. 90). Hence, even if contributory infringement and inducement were included in advertising “offenses” listed in the policies, there is no indication that Gencor committed those wrongs in the course of advertising or advertising activities. Based on the foregoing, the Court determines that these insurers have no obligation to defend Gencor under the subject insurance policies. Further, Gencor’s liability to Standard Havens for patent infringement is not covered under the policies. Accordingly, Gencor’s motions for summary judgment against National Union and Employers In- . surance of Wausau will be denied. V. GENCOR’S MOTIONS FOR SUMMARY JUDGMENT AGAINST TRAVELERS INDEMNITY COMPANY (DKT. 50) AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS (DKT. 52) Gencor contends that patent infringement and inducement to infringe constitute the “offenses” of “infringement of title”, “piracy” and “unfair competition”, as those terms are used in the “advertising injury” definition in the insurance policies issued by the two Travelers companies. The Court rejects these arguments. The" }, { "docid": "1379521", "title": "", "text": "INSURANCE POLICIES The 1986 policy issued by Travelers Indemnity Company, and the 1987 policy issued by Travelers Indemnity Company of Illinois, define “advertising injury” as follows: “Advertising injury” means injury arising out of an offense committed during the policy period occurring in the course of the Named Insured’s advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title or slogan. The policy issued by National Union Fire Insurance Company of Pittsburgh, Pa. defines “advertising injury” as “injury arising out of one or more of the following offenses”: a. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; b. Oral or written publication of material that violates a person’s right of privacy; e. Misappropriation of advertising ideas or style of doing business; or d. Infringement of copyright, title or slo-gen [sic]. The 1988 and 1989 policies issued by Employers Insurance of Wausau provide, in pertinent part, as follows: SECTION I — COVERAGES * * * * * * COVERAGE B. PERSONAL AND ADVERTISING INJURY LIABILITY 1. Insuring Agreement c. This insurance applies to “advertising injury” only if caused by an offense committed: (1) In the “coverage territory” during the policy period; and (2) In the course of advertising your goods, products or services. * * * * * * SECTION V — DEFINITIONS 1. “Advertising injury” means injury arising out of one or more of the following offenses: a. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; b. Oral or written publication of material that violates a person’s right of privacy; c. Misappropriation of advertising ideas or style of doing business; or d. Infringement of copyright, title or slogan. The 1990 policy issued by Wausau Underwriters Insurance Company contains the same language concerning “advertising injury” as is set forth in the 1988 and 1989 Wausau policies. However, in addition, the 1990 policy contains a “Personal and" }, { "docid": "1379524", "title": "", "text": "privacy; c. Misappropriation of advertising ideas or misappropriation of style of doing business; or d. Infringement of copyright, title, trademark, patent, or slogan. ****** D. SECTION V — DEFINITIONS is amended to include the following definition: “Your advertising activities” means wide spread distribution of material promoting your goods, products or services. IV. GENCOR’S MOTIONS FOR SUMMARY JUDGMENT AGAINST NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. (DKT. 54), AND EMPLOYERS INSURANCE OF WAUSAU (DKTS. 46 AND 48) Direct patent infringement, contributory infringement, and inducement to infringe are not listed as “offenses” in the policies issued by these carriers. Nevertheless, Gencor asserts that one or more of the “offenses” listed in the policies encompass patent infringement and/or inducement. Specifically, Gencor argues that patent infringement and inducement come within the ambit of the listed “offenses” of “misappropriation of advertising ideas or style of doing business” and “infringement of title.” The Court rejects these arguments. Patent infringement and inducement to infringe do not constitute “misappropriation of advertising ideas or style of doing business.” See St. Paul Fire & Marine Ins. Co. v. Advanced Interventional Sys., 824 F.Supp. 583, 585-87 (E.D.Va.1993) (construing similar policy language of “unauthorized taking of advertising ideas or style of doing business”), aff'd., 1994 WL 118029, 1994 U.S.App. LEXIS 6979 (4th Cir. Apr. 8, 1994). The rationale underlying this proposition is simple: [I]t is nonsense to suppose that if the parties had intended the insurance policy in question to cover patent infringement claims, the policy would explicitly cover infringements of “copyright, title or slogan,” but then include patent infringement, sub silentio, in a different provision, by reference to “unauthorized taking of ... [the] style of doing business.” Advanced Interventional, 824 F.Supp. at 586. This logic applies equally to the inducement claim. It is even more absurd to suggest that the phrase “infringement of ... title”, as used in the clause “infringement of copyright, title or slogan”, encompasses patent infringement or inducement to infringe. Basic common sense dictates that if these policies covered any form of patent infringement, the word “patent” would appear in the quoted “infringement” clauses. Accordingly, the Court" }, { "docid": "1379525", "title": "", "text": "Marine Ins. Co. v. Advanced Interventional Sys., 824 F.Supp. 583, 585-87 (E.D.Va.1993) (construing similar policy language of “unauthorized taking of advertising ideas or style of doing business”), aff'd., 1994 WL 118029, 1994 U.S.App. LEXIS 6979 (4th Cir. Apr. 8, 1994). The rationale underlying this proposition is simple: [I]t is nonsense to suppose that if the parties had intended the insurance policy in question to cover patent infringement claims, the policy would explicitly cover infringements of “copyright, title or slogan,” but then include patent infringement, sub silentio, in a different provision, by reference to “unauthorized taking of ... [the] style of doing business.” Advanced Interventional, 824 F.Supp. at 586. This logic applies equally to the inducement claim. It is even more absurd to suggest that the phrase “infringement of ... title”, as used in the clause “infringement of copyright, title or slogan”, encompasses patent infringement or inducement to infringe. Basic common sense dictates that if these policies covered any form of patent infringement, the word “patent” would appear in the quoted “infringement” clauses. Accordingly, the Court determines that Gencor’s infringement of Standard Havens’ patent is not encompassed within any of the advertising “offenses” listed in these insurance policies. Moreover, coverage is afforded under these policies only if one of the specified “offenses” was committed in the course of the insured’s advertising or advertising activities. Direct patent infringement cannot be committed in the course of advertising activities. See Aetna Casualty & Surety Co. v. Superior Court, 19 Cal.App.4th 320, 328, 23 Cal.Rptr.2d 442 (1993), review denied (Cal.1994). Even if the rule were otherwise respecting contributory infringement or inducement to infringe, there is no indication that Gencor committed those wrongs in the course of advertising. Standard Havens’ Complaint, First Amended Complaint, and Reply to Gencor’s Counterclaim do not allege that Gencor committed any form of patent infringement in the course of advertising. Ordinarily, the absence of an allegation that the underlying offense occurred because of advertising would result in a determination that the insurers have no duty to defend. See Lazzara Oil Co. v. Columbia Casualty Co., 683 F.Supp. 777, 781 (M.D.Fla.1988), aff'd." }, { "docid": "23680356", "title": "", "text": "award was modified by the district court in February 1999 to include $206,892 in prejudgment interest, for a total judgment of $606,892. Subsequently, Double R sought indemnity for the judgment from Nationwide Mutual Fire Insurance Co., the insurance company from which it had purchased a commercial general liability insurance policy in December 1992. The policy provides coverage for “ ‘[advertising injury’ caused by an offense committed in the course of advertising [Double R’s] goods, products or services.” It defines “advertising injury” to include: injury arising out of one or more of the following offenses: a. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organizations’ goods, products or services; b. Oral or written publication of material that violates a person’s right of privacy; c. Misappropriation of advertising ideas or style of doing business; or d. Infringement of copyright, title or slogan. The “advertising injury” coverage is subject to the following exclusions: This insurance does not apply to: a. “Personal injury” or “advertising injury:” (1) Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity; (2) Arising out of oral or written publication of material whose first-publication took place before the beginning of the policy period; (3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured.... In response to Double R’s claim under the “advertising injury” provision of the policy, Nationwide sent Double R a letter dated November 16, 1994, in which it denied coverage. Specifically, the letter stated that the Lanham Act claim did not constitute an “advertising injury” as that term is defined by the policy and that the claim was subject to one or more of the exclusions described above. It also said that the policy did not cover “willful” patent infringement or unfair competition. In December 1999, Double R effected an “Assignment for the Benefit of Creditors,” in which it assigned all assets, including “proceeds from insurance policies” to Larry Hyman." }, { "docid": "1379526", "title": "", "text": "determines that Gencor’s infringement of Standard Havens’ patent is not encompassed within any of the advertising “offenses” listed in these insurance policies. Moreover, coverage is afforded under these policies only if one of the specified “offenses” was committed in the course of the insured’s advertising or advertising activities. Direct patent infringement cannot be committed in the course of advertising activities. See Aetna Casualty & Surety Co. v. Superior Court, 19 Cal.App.4th 320, 328, 23 Cal.Rptr.2d 442 (1993), review denied (Cal.1994). Even if the rule were otherwise respecting contributory infringement or inducement to infringe, there is no indication that Gencor committed those wrongs in the course of advertising. Standard Havens’ Complaint, First Amended Complaint, and Reply to Gencor’s Counterclaim do not allege that Gencor committed any form of patent infringement in the course of advertising. Ordinarily, the absence of an allegation that the underlying offense occurred because of advertising would result in a determination that the insurers have no duty to defend. See Lazzara Oil Co. v. Columbia Casualty Co., 683 F.Supp. 777, 781 (M.D.Fla.1988), aff'd. without op., 868 F.2d 1274 (11th Cir.1989); Sentry Ins. v. R.J. Weber Co., 2 F.3d 554, 557 (5th Cir.1993). However, Gencor argues that the following sentence in Standard Havens’ Complaint provides the necessary link to advertising: In violation of [Gencor’s] contractual and ethical obligations as a vendor of asphalt plant components to asphalt plant manufacturers, [Gencor] utilized [Standard Havens’] new plant design and technology to offer [Gencor’s] own asphalt plant to the industry. Standard Havens’ Complaint, para. 11 (Part 2 of Geneor’s Appendix and Notice of Filing in Support of Motions for Summary Judgment (Dkt. 56)) . This argument is unconvincing. First, in the context of the quoted sentence, “offer” does not equate to “advertising”. Second, the quoted allegation was included in Standard Havens’ unfair competition count of the Complaint, well before any allegations of patent infringement had been injected in the case. Third, and perhaps most significant, Gencor mistakenly focuses on the pleadings as triggering the duty to defend. Ordinarily, a court would decide the duty to defend issue by examining the allegations in" }, { "docid": "1379523", "title": "", "text": "Advertising Injury Liability Coverage Amendment Endorsement”, effective May 1, 1990. The “Amendment Endorsement” provides,- in pertinent part, as follows: A. COVERAGE B. PERSONAL AND ADVERTISING INJURY LIABILITY is deleted and replaced by the following: COVERAGE B. PERSONAL AND ADVERTISING INJURY LIABILITY 1. Insuring Agreement. ****** b. This insurance applies to “personal injury” or “advertising injury” only if: (1) The “personal injury” or “advertising injury” arises out of an offense committed in the “coverage territory”; and (2) The “personal injury” or “advertising injury” arises out of an offense committed during the policy period. ****** B. SECTION V — DEFINITIONS, paragraph 1. is deleted and replaced by the following: 1. “Advertising injury” means injury, other than “bodily injury” or “property damage”, arising out of one or more of the following offenses committed in the course of “your advertising activities”: a. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products, or services; b. Oral or written publication of material that violates a person’s right of privacy; c. Misappropriation of advertising ideas or misappropriation of style of doing business; or d. Infringement of copyright, title, trademark, patent, or slogan. ****** D. SECTION V — DEFINITIONS is amended to include the following definition: “Your advertising activities” means wide spread distribution of material promoting your goods, products or services. IV. GENCOR’S MOTIONS FOR SUMMARY JUDGMENT AGAINST NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. (DKT. 54), AND EMPLOYERS INSURANCE OF WAUSAU (DKTS. 46 AND 48) Direct patent infringement, contributory infringement, and inducement to infringe are not listed as “offenses” in the policies issued by these carriers. Nevertheless, Gencor asserts that one or more of the “offenses” listed in the policies encompass patent infringement and/or inducement. Specifically, Gencor argues that patent infringement and inducement come within the ambit of the listed “offenses” of “misappropriation of advertising ideas or style of doing business” and “infringement of title.” The Court rejects these arguments. Patent infringement and inducement to infringe do not constitute “misappropriation of advertising ideas or style of doing business.” See St. Paul Fire &" } ]

[ { "docid": "16755267", "title": "", "text": "the doctor’s opinion, and the AU dismissed the claimant’s assertions of pain after observing the claimant at a hearing, without finding any evidence of malingering. And identical to the findings in Rhodes, the AU here found that Coats was impaired, but that the impairment did not establish total disability. We come to the same conclusion, as did another panel of this court in Rhodes, namely, that the AU improperly rejected the opinion of Coats’ doctor regarding the severity of the impairment based upon his observations of the claimant’s behavior at the hearing. To be sure, the AU could properly disregard Coats’ self-serving statements to the extent they were unsupported by objective findings. Hall v. Secretary of Health, Education & Welfare, 602 F.2d 1372, 1377 (9th Cir.1979). Yet, as we have held, the objective evidence does support a prima facie showing of disability. Specifically, the doctor’s opinion about Coats’ lingering pain and her inability to work remain uncontradicted, and the evidence of the witnesses testifying at the hearing generally supported Coats’ claim of disability. The ALT entirely disregarded these facts in his decision. CONCLUSION As in Rhodes the ALT rejected the doctor’s uncontradicted opinion without articulating clear and convincing reasons therefor. Accordingly, we reverse the judgment of the district court and remand the case to the Secretary to determine whether there are clear and convincing reasons to reject the uncontradicted opinion of Coats’ doctor that she is disabled within the meaning of the Social Security Act and, if there are such clear and convincing reasons, to articulate them. If there are none, the burden is on the Secretary to prove that Coats can engage in some type of substantial work that exists in the national economy. Hall, supra, 602 F.2d at 1375. . Coats’ daughter testified that Coats was in an extreme amount of pain for most of each day, had problems walking, driving a car, and could only perform light housework. A family friend further testified that she sees Coats on a daily basis, and that her condition had steadily deteriorated. The friend noted that Coats was constantly attempting to" } ]

[ { "docid": "23242541", "title": "", "text": "ability to care for himself or relate to other people. While the claimant’s medications probably preclude being around machines in operation, the claimant’s ability to concentrate did not appear significantly limited. A claimant bears the burden of proving that an impairment is disabling. See, e.g., Swanson, 763 F.2d at 1064. Miller produced no clinical evidence showing that narcotics use impaired his ability to work. Accordingly, the AU properly rejected Miller’s claim. E. Miller’s Ability to Work The AU found that Miller was capable of “light work.” The Secretary’s regulations regarding disability insurance contain the following definition: Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 20 C.F.R. § 404.1567(b); see also id. § 416.-967(b) (identical definition for purposes of supplemental security income). Dr. Dhalla’s report supports the AU’s conclusion that Miller could perform “light work.” Miller argues that the AU erred by failing to require the Secretary to produce evidence showing that Miller could, in fact, obtain employment. Miller is incorrect. The Secretary is required to produce vocational evidence only when the claimant has shown that he or she cannot perform any previous relevant work. See Perminter v. Heckler, 765 F.2d 870, 871-72 (9th Cir.1985); Gonzalez v. Harris, 631 F.2d 143, 145 (9th Cir.1980). The AU found that Miller’s previous relevant work as a technical writer was “light work.” Accordingly, the Secretary was not obligated to produce vocational evidence. IV Conclusion The Secretary’s findings were supported by substantial evidence. Accordingly, the district court’s decision is AFFIRMED. . The first letter, which is dated May 18, 1981, contains one paragraph: This is to certify that the" }, { "docid": "16064049", "title": "", "text": "September, 1982, later medical reports are uneontroverted that Perminter suffered from significant loss of motion in his left knee and was in great pain. The last doctor to examine Permin-ter agreed with earlier reports that Permin-ter could not perform heavy work and that April 1, 1984 is a reasonable date to expect Perminter to return to work. The AU found that Perminter could not perform his past relevant work but that he is capable of performing sedentary work and was not disabled for. a continuous twelve-month period. The magistrate adopted the AU’s findings. Discussion The jurisdiction of this court is limited to determining whether the Secretary’s findings are supported by substantial evidence, viewing the record as a whole. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir.1984). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Johnson v. Harris, 625 F.2d 311, 312 (9th Cir.1980). The Secretary conceded that Per-minter could not return to his former heavy work but found that he was able to perform sedentary work within the requisite twelve-month period of disability. The evidence, however, indicates that for more than twenty months since his injury, Per-minter, because of excruciating pain, was unable to work at any job. Once Perminter showed that he cannot perform his former work, it became the Secretary’s burden to show what specific jobs Perminter is capa ble of performing. Bonilla v. Secretary, 671 F.2d 1245, 1246 (9th Cir.1982). The Secretary failed to do it. Instead, she mistakenly relied on the medical-vocational guidelines to find Perminter not disabled. She did not give adequate consideration to his pain, which is a non-exertional limitation not included in the guidelines. 20 C.F.R. pt. 404, subpt. P, app. 2 § 200.00(a), (d) and (e). Absent other reliable evidence of Perminter’s ability to perform specific jobs, the Secretary must use a vocational expert. Hall v. Secretary, 602 F.2d 1372, 1377 (9th Cir.1979). No vocational expert testified at the hearing, and there was no other evidence which showed that Permin-ter is capable of performing any specific jobs. The AU’s reliance on" }, { "docid": "16064048", "title": "", "text": "PER CURIAM: David Perminter appeals from the denial of Supplemental Security Insurance (SSI) and disability insurance benefits by the Secretary of Health and Human Services (Secretary) and by the district court. We reverse. Facts On June 29, 1982, Perminter applied for benefits alleging disability since June 14, 1982. His applications were denied initially, upon reconsideration, and by the Administrative Law Judge (AU) after a hearing. The Appeals Council denied review, and the AU’s decision became the final decision of the Secretary. The district court adopted the magistrate’s recommendation to affirm the Secretary’s decision. At the time of the hearing held on March 2, 1983, Perminter was thirty-two years old and had a tenth-grade education. He served in the United States Army from 1971 to 1974; since then he worked as a laborer in steel mills, as a truck driver, and as a janitor. Perminter alleges disability from pain associated with his left knee which was fractured on June 14,1982 when two men beat and robbed him. Although initially Perminter expected to return to work by September, 1982, later medical reports are uneontroverted that Perminter suffered from significant loss of motion in his left knee and was in great pain. The last doctor to examine Permin-ter agreed with earlier reports that Permin-ter could not perform heavy work and that April 1, 1984 is a reasonable date to expect Perminter to return to work. The AU found that Perminter could not perform his past relevant work but that he is capable of performing sedentary work and was not disabled for. a continuous twelve-month period. The magistrate adopted the AU’s findings. Discussion The jurisdiction of this court is limited to determining whether the Secretary’s findings are supported by substantial evidence, viewing the record as a whole. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir.1984). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Johnson v. Harris, 625 F.2d 311, 312 (9th Cir.1980). The Secretary conceded that Per-minter could not return to his former heavy work but found that he was able to perform" }, { "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": "22823239", "title": "", "text": "under those circumstances “the Secretary may not rely on the grids alone to show the availability of jobs for the claimant.” Jones, 760 F.2d at 998. The Secretary must also hear the testimony of a vocational expert. Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985). When the Secretary is required to call a vocational expert, the Guidelines “provide an overall structure” and a \"frame of reference” within which the vocational expert must evaluate and the AU must decide individual cases. 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(d) (1987). If either a vocational expert’s testimony or an AU’s decision appears to be inconsistent with the overall structure provided by the Guidelines, a claimant may challenge the testimony or the decision on that basis. A claimant’s disability level may fail to fit within the Guidelines in one of two ways. The Guidelines contain three tables: One for claimants who can perform “sedentary work,” 20 C.F.R. pt. 404, subpt. P, app. 2, table 1 (1987); one for claimants who can perform “light work,” id. table 2; and one for claimants who can perform “medium work,” id. table 3. There is no table for claimants who can perform “heavy work” because “an impairment which does not preclude heavy work (or very heavy work) would not ordinarily be the primary reason for unemployment, and generally is sufficient for a finding of not disabled, even though age, education, and skill level of prior work experience may be considered adverse.” 20 C.F.R. pt. 404, subpt. P, app. 2, § 204.00 (in short, anyone who can perform heavy work, as that category is defined by the social security system, is probably employable). Each table’s designated level of work capacity has a technical definition that is phrased in terms of strength limitations. See 20 C.F.R. § 404.1567. If a claimant’s strength limitations differ from the technical definitions of sedentary, light, or medium work — for example the claimant falls somewhere between sedentary and light work — then the claimant is said to have exertional limitations that are not described by the grids. 20 C.F.R. pt." }, { "docid": "23475795", "title": "", "text": "were not supported by the medical record, he concluded that Gamer was incapable of “lifting and carrying with the left upper extremity and fine manipulation and dexterity of the left upper extremity.” The medical reports also confirm the existence of pain. Thus, the objective evidence establishes the existence of significant pain in Gamer’s arm and hand, and the findings do not justify the AU’s decision to disregard this evidence. Even if the finding regarding pain is interpreted to disregard only the pain in excess of the medical evidence, the finding is inadequate. Gamer testified at the hearing to severe back pain in excess of that supported by the medical evidence. Because the excess pain is associated with a clinically demonstrated impairment, the AU is required to consider the testimony. Id. The fact that the testimony was not fully supported by the medical evidence is not in itself a sufficient reason for discrediting the testimony. Id. C. Hypothetical Questions Gamer also claims that the Secretary did not meet his burden of proof in establishing that Gamer could perform other types of work. See Perminter v. Heckler, 765 F.2d 870, 871-72 (9th Cir.1985) (per curiam). Absent other reliable evidence of a claimant’s ability to perform specific jobs, “the Secretary must use a vocational expert.” Id. at 872. Hypothetical questions asked of vocational experts must “set out all of the claimant’s impairments.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.1984) (quoting Baugus v. Secretary of Health and Human Services, 717 F.2d 443, 447 (8th Cir.1983)). “If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has a residual working capacity has no evidentiary value.” Gallant, 753 F.2d at 1456. The hypothetical questions asked of the vocational expert in this case did not establish that Gamer could perform other types of work. The questions were deficient because they failed to set out Gamer’s impairments. The ALJ told the vocational expert to accept the impairment to Gamer’s left arm as credible, but to exclude Gamer’s complaints regarding his back. The questions did not explain" }, { "docid": "22823243", "title": "", "text": "work. Under either approach, the Guidelines do not accurately or completely describe Desrosiers’ disability. Desrosiers also has non-exertional postural limitations not covered by the Guidelines. He cannot lift his left arm above ninety degrees. Nor can he repeatedly stoop or bend. Given the fact that light work under the social security disability system contemplates repeated lifting of ten pounds in any position, it is clear that Des-rosiers’ postural limitations also prevent him from performing the full range of light work. On the basis of the medical record before the Secretary, Desrosiers can perform work that does not require prolonged lifting, bending, stooping, pulling, pushing, or climbing, and does not require the use of his left upper extremity above shoulder level. This residual functional capacity is not captured by the description of light work used in the Medical-Vocational Guidelines. At best, Desrosiers’ limitations place him somewhere between light and sedentary work. Therefore, the Guidelines should not have been applied, and the Secretary erred by using the Guidelines to declare that Desrosiers is not disabled and by failing to call a vocational expert. The Secretary argues that Desrosiers can perform “light work” because he can perform some of the jobs that qualify as light work. This approach is not permissible. The Secretary may base a finding of “not disabled” on the fact that a claimant can perform some, although not all, light work only if such a finding is supported by both the medical evidence and the testimony of a vocational expert. See Perminter, 765 F.2d at 872; Kail, 722 F.2d at 1497-98. To make such a finding, however, the Secretary is required to call a vocational expert and hear testimony as to whether the claimant can perform enough light jobs in the national economy to warrant a finding of “not disabled.” See Kail, 722 F.2d at 1498 (emphasis added); 20 C.F.R. § 404.1560(b)(3) (1987) (“If we find that you can no longer do the work you have done in the past, we will determine whether you can do other work (jobs) which exists in significant numbers in the nation’s economy.”). The" }, { "docid": "22812804", "title": "", "text": "leave the question open. If on remand, the AU accepts the appellant’s pain testimony as true, the appellant is not necessarily entitled to benefits. Even considering appellant’s pain, Dr. Williams said appellant could perform light work and Dr. Eltherington said that he could perform sedentary work. Drs. Mc-Adams and Williams reached the opposite conclusion. If the AU finds Gonzalez’s pain testimony to be true, he should then determine whether Gonzalez has the residual functional capacity to perform sedentary work. See Hammock, 879 F.2d 504; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987) (“If additional proceedings can remedy defects in the original administrative proceedings, a social security case should be remanded.”). The Secretary must employ a vocational expert. See Hammock, 879 F.2d at 504. Y. Application of the GRIDS Once a claimant proves he cannot return to his former work, the Secretary must show that there are jobs in the national economy that the claimant can perform. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir.1985). If the Medical-Vocational Guidelines (grids) do not completely and accurately describe residual functional capacity or work abilities, the Secretary may not rely exclusively on the grids to show the availability of jobs. Id. “Absent other reliable evidence of [claimant’s] ability to perform specific jobs,” the Secretary must use a vocational expert. Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985). Even though the Secretary found substantiating evidence for appellant’s bladder problem, he applied Rule 201.19 of Table 1, Appendix 2 and found that appellant was not disabled. The Secretary did not explain how appellant’s incontinence affects his ability to work or whether incontinence constitutes a nonexertional limitation in this case. See Haynes v. Heckler, 716 F.2d 483, 485 (8th Cir.1983) (colon discomfort and recurrent episodes of diarrhea are nonexertional limitations). This omission is error. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.1984) (per curiam) (Secretary must make specific findings essential to the conclusion); Lewin v. Schweiker, 654 F.2d at 635 (quoting Dobrowolsky v. Califano, 606 F.2d 403, 409 (3rd Cir.1979)) (same). On remand, the Secretary must employ a vocational expert to" }, { "docid": "23475796", "title": "", "text": "could perform other types of work. See Perminter v. Heckler, 765 F.2d 870, 871-72 (9th Cir.1985) (per curiam). Absent other reliable evidence of a claimant’s ability to perform specific jobs, “the Secretary must use a vocational expert.” Id. at 872. Hypothetical questions asked of vocational experts must “set out all of the claimant’s impairments.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.1984) (quoting Baugus v. Secretary of Health and Human Services, 717 F.2d 443, 447 (8th Cir.1983)). “If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has a residual working capacity has no evidentiary value.” Gallant, 753 F.2d at 1456. The hypothetical questions asked of the vocational expert in this case did not establish that Gamer could perform other types of work. The questions were deficient because they failed to set out Gamer’s impairments. The ALJ told the vocational expert to accept the impairment to Gamer’s left arm as credible, but to exclude Gamer’s complaints regarding his back. The questions did not explain how Gamer’s left arm was impaired. No reference was made to Gamer’s left hand or to his hypertension. The vocational expert’s role is not to evaluate the medical evidence. It is to “translate[] factual scenarios into realistic job market probabilities.” Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir. 1982). Hypothetical questions must set out the limitations of that particular claimant. Because Gamer suffers significant pain, pain should have formed a part of the hypothetical question. See Gallant, 753 F.2d at 1456. The AU’s hypothetical questions should have included all other restrict tions, such as Gamer’s inability to lift certain weights and his inability to do fine manipulations. Cf. Martinez, 807 F.2d at 773 (upholding the use of a hypothetical question that set out the specific limitations of the claimant). A hypothetical question is not useful if, as in this case, it requires the vocational expert to weigh the evidence for probity or to determine the validity of a medical opinion. See Sample, 694 F.2d at 643-44. The Secretary also argues that Gamer’s failure to" }, { "docid": "22823238", "title": "", "text": "in determining the availability of other work. These factors include residual functional capacity, age, education, and work experience. For each combination, the tables direct a finding of either “disabled” or “not disabled.” See id. This generalized approach encourages the Secretary to treat like cases alike and to streamline the administrative process. Campbell, 461 U.S. at 461-62, 103 S.Ct. at 1954-55. Because the tables are merely an administrative tool to resolve individual claims that fall into standardized patterns, there are strict limits on when the Secretary may rely on the Guidelines. “[T]he AU may apply the Secretary’s medical-vocational guidelines (the grids) in lieu of taking the 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) (emphasis added); see also Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir.1984). 1116 grids may be used as a reference point for decisionmaking when they do not accurately and completely describe a claimant’s residual functional capacity, age, education, or work experience. However, under those circumstances “the Secretary may not rely on the grids alone to show the availability of jobs for the claimant.” Jones, 760 F.2d at 998. The Secretary must also hear the testimony of a vocational expert. Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985). When the Secretary is required to call a vocational expert, the Guidelines “provide an overall structure” and a \"frame of reference” within which the vocational expert must evaluate and the AU must decide individual cases. 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(d) (1987). If either a vocational expert’s testimony or an AU’s decision appears to be inconsistent with the overall structure provided by the Guidelines, a claimant may challenge the testimony or the decision on that basis. A claimant’s disability level may fail to fit within the Guidelines in one of two ways. The Guidelines contain three tables: One for claimants who can perform “sedentary work,” 20 C.F.R. pt. 404, subpt. P, app. 2, table 1 (1987); one for claimants who can perform “light work,” id." }, { "docid": "2384008", "title": "", "text": "4 supra), use of the medical vocational grids was improper and the Secretary should have utilized a vocational expert. The Secretary failed to carry its burden. No vocational expert testified and there is no other evidence to show that Penny was capable of performing even light or sedentary work. Consistent with this court’s analysis in Perminter, 765 F.2d at 872, we find that the Secretary has failed to support his denial of Penny’s claims. We reverse and remand to the district court with instructions to enter judgment for the claimant in accordance with this opinion. It is so ordered. . Title II of the Act, 42 U.S.C. § 401 et, seq., provides for disability insurance for covered wage earners. Eligibility for Title XVI SSI benefits is based on economic need. The more “chargeable\"' income a claimant has, the less SSI benefits he will receive. 42 U.S.C. § 1382(a)(2). Whether Penny meets the means test for SSI is not the issue before us. We pass only on the question of whether the claimant meets the definition of \"disabled” (i.e., unable to perform substantial gainful activity) such that he could be considered for SSI benefits. The definition of disability is virtually identical for SSI consideration as' it is for Title II disability insurance benefits. Indeed, many claimants apply for Title II and Title XVI benefits concurrently. Guadamuz v. Bowen, 859 F.2d 762, 764 (9th Cir.1988). . Penny applied for Title II disability insurance benefits in December 1981, alleging an onset date of June 27, 1980. That application was denied February 19, 1982. Because Penny failed to pursue administrative remedies, the decision became final and binding as to claimant's condition prior to February 19, 1982. 42 U.S.C. § 405(h); Green v. Heckler, 803 F.2d 528, 530 (9th Cir.1986). Penny, however, received a workers compensation settlement in the amount of $42,000 in 1980 for that work-related injury. . All of Penny's medical records from 1980 through his hospitalization in 1988 were offered into evidence. The case history shows that Penny had an initial laminectomy in 1969 from which he had fully recovered. . Penny" }, { "docid": "11515575", "title": "", "text": "220]. In sum, the ALJ’s findings do not support his rejection of Macri’s subjective pain complaints. This error requires a remand because the pain reported by Macri, if believed, may require a finding that he is disabled. “ A man who cannot walk, stand or sit for over one hour without pain does not have the capacity to do most jobs available in the national economy.’ ” Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir.1984) (quoting Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir. 1983)) (reversing denial of benefits because ALJ’s determination that claimant was able to perform light work was unsupported in light of pain evidence). Pain is a nonexer-tional limitation which is not included in the medical vocational guidelines. See Penny v. Sullivan, 2 F.3d 953, 958-59 (9th Cir.1993); Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985); 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(d), (e) (1995). If Macri’s subjective complaints of pain are credited, the Commissioner would need to call a vocational expert in order to carry her burden of showing that there are jobs in the national economy that Macri is capable of performing. See Penny, 2 F.3d at 959; Perminter, 765 F.2d at 872. This error requires a remand for reconsideration of Macri’s subjective complaints of pain in light of the evidence in the medical record, and without reliance on Ma-cri’s completion of the electronics course. II Macri contends that the ALJ committed a second error by rejecting the opinion of a treating physician without “makfing] findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir.1994) (quoting Miller v. Heckler, 770 F.2d 845, 849 (9th Cir.1985)). The ALJ rejected without explanation the 1987 opinion of Dr. Hanbery that Macri was restricted from “prolonged standing or sitting,” and specifically, that “[t]he prolonged sitting required in electronic assembly work I think will preclude his entering into this type of employment.” Appellant’s Opening Br. at 6. The majority holds that the ALJ committed no error because" }, { "docid": "2384006", "title": "", "text": "as I can tell. The Secretary determined that Penny could not return to his lifetime occupation as early as 1982. Having made such a concession, the Secretary must produce evidence that there exists within the national economy light or sedentary work that the claimant could perform. This the Secretary failed to do. There is no testimony in the record to refute Penny’s claim of disability. The Secretary rested its case on the sole statement of Dr. Ross that Penny could do sedentary work. But, as indicated, we find this weak evidence because Dr. Ross had never examined Penny. Different people may be affected by similar injuries in different ways. Different people have greater or lesser sensitivity to pain. Without a personal medical evaluation it is almost impossible to assess the residual functional capacity of any individual. As a consequence of the ALJ’s error in discrediting Penny’s complaints of pain, the Secretary erroneously relied on the medical vocational grids to determine that there were jobs in the national economy that Penny is capable of performing. This court has given extensive instruction concerning the use of the medical vocational grids when there is pain so severe that it provides limitation and disability to a claimant. See, e.g., Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573 (9th Cir.1988); Howard v. Heckler, 782 F.2d 1484 (9th Cir.1986). If a claimant has an impairment that limits his or her ability to work without directly affecting his or her strength, the claimant is said to have nonexertional (not strength-related) limitations that are not covered by the grids. 20 C.F.R., pt 404, subpt P, app. 2 § 200.00(d), (e) (1987). A non-exertional impairment, if sufficiently severe, may limit the claimant’s functional capacities in ways not contemplated by the guidelines. In such a case the guidelines would be inap- plieable. Desrosiers, 846 F.2d at 577. We have held that pain may be a non-exertional limitation. See, e.g., Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985). Because we find substantial evidence on the record as a whole supports Penny’s claim of non-exertional pain (see n." }, { "docid": "16064050", "title": "", "text": "sedentary work within the requisite twelve-month period of disability. The evidence, however, indicates that for more than twenty months since his injury, Per-minter, because of excruciating pain, was unable to work at any job. Once Perminter showed that he cannot perform his former work, it became the Secretary’s burden to show what specific jobs Perminter is capa ble of performing. Bonilla v. Secretary, 671 F.2d 1245, 1246 (9th Cir.1982). The Secretary failed to do it. Instead, she mistakenly relied on the medical-vocational guidelines to find Perminter not disabled. She did not give adequate consideration to his pain, which is a non-exertional limitation not included in the guidelines. 20 C.F.R. pt. 404, subpt. P, app. 2 § 200.00(a), (d) and (e). Absent other reliable evidence of Perminter’s ability to perform specific jobs, the Secretary must use a vocational expert. Hall v. Secretary, 602 F.2d 1372, 1377 (9th Cir.1979). No vocational expert testified at the hearing, and there was no other evidence which showed that Permin-ter is capable of performing any specific jobs. The AU’s reliance on his personal observations of Perminter at the hearing has been condemned as “sit and squirm” jurisprudence. Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir.1982). Denial of benefits cannot be based on the ALJ’s observation of Perminter, when Perminter's statements to the contrary, as here, are supported by objective evidence. Coats v. Heckler, 733 F.2d 1338, 1341 (9th Cir.1984). The Secretary’s findings, considering the record as a whole, are not supported by substantial evidence, and there is no evidence in the record to show that Perminter is physically able to perform any job for which he is qualified. We find that Perminter is disabled within the meaning of the Act. We reverse the judgment of the district court and remand with instructions to enter a judgment awarding Perminter disability benefits beginning June 14, 1982." }, { "docid": "22955395", "title": "", "text": "Vocational Expert Opinion Gomez additionally argues that the Commissioner erred in finding that Gomez could perform other work in the national economy, inasmuch as, she contends, the Commissioner improperly discounted the opinion of a vocational expert she provided. As part of her appeal of the ALJ’s decision, Gomez submitted to the Appeals Council a report from a vocational expert obtained after the ALJ’s decision. Although the Appeals Council affirmed the decision of the ALJ denying benefits to Gomez, this evidence is part of the record on review to this court. Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir.1993). The Appeals Council considered the additional evidence submitted by Gomez and found that the conclusion of Gomez’s vocational expert, that Gomez could perform no work available in the national economy, was of no effect because it was based on limitations which the ALJ had properly rejected. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.1984) (“If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert ... has no evidentiary value.”). Thus, Gomez’s contention that the Commissioner is bound to accept this evidence because it is uncontrovert-ed is without merit. While the burden was on the Commissioner to prove that there are other jobs existing in the national economy which Gomez could perform, the Commissioner was not required to fulfill this burden through the use of a vocational expert. We have interpreted the regulations to provide that the use of vocational experts is left to the Commissioner’s discretion. 20 C.F.R. §§ 404.1566(e), 416.966(e); Albrecht v. Heckler, 765 F.2d 914, 916 (9th Cir.1985). At the most, the Commissioner need use a vocational expert only if there is an absence of other reliable evidence of the claimant’s ability to perform specific jobs. Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985). Thus, while the ALJ called a vocational expert to testify at the hearing, he ultimately and properly relied solely on the medical-vocational guidelines in Part 404, Subpart P, Appendix 2, in finding that Gomez could perform other work in the national economy. Not only was" }, { "docid": "11515574", "title": "", "text": "However, there is no logical nexus between the completion of an electronics course and an ability to perform light work, which includes lifting up to 20 pounds, frequently lifting up to 10 pounds, and “standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” Social Security Ruling 83-10; see also 20 C.F.R. § 404.1567(b) (1995). Because the record contains no evidence about the physical demands of the electronics course, Maori’s completion of the course says nothing about his ability to perform electronics assembly work for a full eight-hour workday, let alone his ability to perform light work generally. In fact, Dr. Hanbery reported in 1987 that Maori told him that he had attempted a job in this field but “after working there the first day realized that the amount of sitting that was required caused him to experience a marked increase in his low back pain. He tried the second day to report for that job but simply soon found that he could not do it_” [AR at 220]. In sum, the ALJ’s findings do not support his rejection of Macri’s subjective pain complaints. This error requires a remand because the pain reported by Macri, if believed, may require a finding that he is disabled. “ A man who cannot walk, stand or sit for over one hour without pain does not have the capacity to do most jobs available in the national economy.’ ” Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir.1984) (quoting Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir. 1983)) (reversing denial of benefits because ALJ’s determination that claimant was able to perform light work was unsupported in light of pain evidence). Pain is a nonexer-tional limitation which is not included in the medical vocational guidelines. See Penny v. Sullivan, 2 F.3d 953, 958-59 (9th Cir.1993); Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985); 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(d), (e) (1995). If Macri’s subjective complaints of pain are credited, the Commissioner would need to call a vocational expert in order to carry" }, { "docid": "22823244", "title": "", "text": "failing to call a vocational expert. The Secretary argues that Desrosiers can perform “light work” because he can perform some of the jobs that qualify as light work. This approach is not permissible. The Secretary may base a finding of “not disabled” on the fact that a claimant can perform some, although not all, light work only if such a finding is supported by both the medical evidence and the testimony of a vocational expert. See Perminter, 765 F.2d at 872; Kail, 722 F.2d at 1497-98. To make such a finding, however, the Secretary is required to call a vocational expert and hear testimony as to whether the claimant can perform enough light jobs in the national economy to warrant a finding of “not disabled.” See Kail, 722 F.2d at 1498 (emphasis added); 20 C.F.R. § 404.1560(b)(3) (1987) (“If we find that you can no longer do the work you have done in the past, we will determine whether you can do other work (jobs) which exists in significant numbers in the nation’s economy.”). The reason for this requirement is that the Secretary may use the Medical-Vocational Guidelines to find that a claimant is not disabled only when the general categories of disability employed by the Guidelines — such as “sedentary work” or “light work” — accurately and completely describe the claimant’s physical limitations. 20 C.F.R. pt. 404, subpt. P, app. 2 § 200.00(d) (1987) (“If an individual’s specific profile is not listed within [the Medical-Vocational Guidelines], a conclusion of disabled or not disabled is not directed.\"); Jones, 760 F.2d at 998 (“The AU must not apply the [Medical-Vocational Guidelines] mechanically in borderline cases or where claimant’s possess limitations that are not factored into the guidelines.”). If a claimant’s limitations do not exactly coincide with the categories used by the Guidelines, the Secretary must take the testimony of a vocational expert to prove the existence of jobs in the national economy that the claimant can perform. Jones, 760 F.2d at 998 (“If the [Guidelines] fail accurately to describe a claimant’s particular limitations, the Secretary may not rely on the [Guidelines]" }, { "docid": "22812805", "title": "", "text": "and accurately describe residual functional capacity or work abilities, the Secretary may not rely exclusively on the grids to show the availability of jobs. Id. “Absent other reliable evidence of [claimant’s] ability to perform specific jobs,” the Secretary must use a vocational expert. Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985). Even though the Secretary found substantiating evidence for appellant’s bladder problem, he applied Rule 201.19 of Table 1, Appendix 2 and found that appellant was not disabled. The Secretary did not explain how appellant’s incontinence affects his ability to work or whether incontinence constitutes a nonexertional limitation in this case. See Haynes v. Heckler, 716 F.2d 483, 485 (8th Cir.1983) (colon discomfort and recurrent episodes of diarrhea are nonexertional limitations). This omission is error. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.1984) (per curiam) (Secretary must make specific findings essential to the conclusion); Lewin v. Schweiker, 654 F.2d at 635 (quoting Dobrowolsky v. Califano, 606 F.2d 403, 409 (3rd Cir.1979)) (same). On remand, the Secretary must employ a vocational expert to consider whether appellant’s incontinence, in combination with his pain, enables him to perform other work, which is available in the national economy in significant numbers. See Hammock, at 504. However, this court cannot consider appellant’s argument that the loss of three fingers is a nonexertional limitation. As the Secretary correctly points out in his brief, appellant failed to raise this issue in the district court. Moreover, appellant failed to show this court the existence of exceptional circumstances or give a convincing explanation for the failure to present this argument below. Accordingly, we hold that appellant has waived this argument on appeal. See Greenhow, 863 F.2d at 638-39. On remand, however, Gonzalez may raise the issue of his loss of three fingers before the AU. See 20 C.F.R. § 416.1446(b)(1). VI. Refusal to Reopen Generally, courts do not have jurisdiction to review the Secretary’s decision not to reopen a previously adjudicated claim. See Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir.1985), cert. denied sub nom. Krumpelman v. Bowen, 475 U.S. 1025, 106 S.Ct. 1222, 89" }, { "docid": "22955396", "title": "", "text": "evidentiary value.”). Thus, Gomez’s contention that the Commissioner is bound to accept this evidence because it is uncontrovert-ed is without merit. While the burden was on the Commissioner to prove that there are other jobs existing in the national economy which Gomez could perform, the Commissioner was not required to fulfill this burden through the use of a vocational expert. We have interpreted the regulations to provide that the use of vocational experts is left to the Commissioner’s discretion. 20 C.F.R. §§ 404.1566(e), 416.966(e); Albrecht v. Heckler, 765 F.2d 914, 916 (9th Cir.1985). At the most, the Commissioner need use a vocational expert only if there is an absence of other reliable evidence of the claimant’s ability to perform specific jobs. Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985). Thus, while the ALJ called a vocational expert to testify at the hearing, he ultimately and properly relied solely on the medical-vocational guidelines in Part 404, Subpart P, Appendix 2, in finding that Gomez could perform other work in the national economy. Not only was the ALJ free to reject the testimony of his vocational expert, but in addition, the Appeals Council was also free to reject evidence produced by Gomez’s vocational expert, evidence which was obtained after an adverse administrative decision. Moreover, in rejecting this evidence, the Appeals Council is not required to make any particular evidentiary finding. While Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.1989) requires that there be substantial evidence for rejecting the opinion of a vocational expert resulting from a hypothetical question propounded by claimant’s counsel, such a requirement was imposed on a vocational expert called by the ALJ during the hearing. Here we are instead confronted with a post-hearing report supplied by a vocational expert solicited by the claimant alone. IV. CONCLUSION We affirm the district court’s decision, affirming the decision of the Commissioner of the Social Security Administration to deny benefits. AFFIRMED. . These sections provide: Use of vocational experts and other specialists. If the issue in determining whether you are disabled is whether your work skills can be used in other" }, { "docid": "2384007", "title": "", "text": "court has given extensive instruction concerning the use of the medical vocational grids when there is pain so severe that it provides limitation and disability to a claimant. See, e.g., Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573 (9th Cir.1988); Howard v. Heckler, 782 F.2d 1484 (9th Cir.1986). If a claimant has an impairment that limits his or her ability to work without directly affecting his or her strength, the claimant is said to have nonexertional (not strength-related) limitations that are not covered by the grids. 20 C.F.R., pt 404, subpt P, app. 2 § 200.00(d), (e) (1987). A non-exertional impairment, if sufficiently severe, may limit the claimant’s functional capacities in ways not contemplated by the guidelines. In such a case the guidelines would be inap- plieable. Desrosiers, 846 F.2d at 577. We have held that pain may be a non-exertional limitation. See, e.g., Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985). Because we find substantial evidence on the record as a whole supports Penny’s claim of non-exertional pain (see n. 4 supra), use of the medical vocational grids was improper and the Secretary should have utilized a vocational expert. The Secretary failed to carry its burden. No vocational expert testified and there is no other evidence to show that Penny was capable of performing even light or sedentary work. Consistent with this court’s analysis in Perminter, 765 F.2d at 872, we find that the Secretary has failed to support his denial of Penny’s claims. We reverse and remand to the district court with instructions to enter judgment for the claimant in accordance with this opinion. It is so ordered. . Title II of the Act, 42 U.S.C. § 401 et, seq., provides for disability insurance for covered wage earners. Eligibility for Title XVI SSI benefits is based on economic need. The more “chargeable\"' income a claimant has, the less SSI benefits he will receive. 42 U.S.C. § 1382(a)(2). Whether Penny meets the means test for SSI is not the issue before us. We pass only on the question of whether the claimant meets the definition" } ]

[ { "docid": "22631138", "title": "", "text": "is clear that without the aid of the. steamtug and the services of her master and crew the members of the fire company would never have been able to reach the ship with their engines and necessary apparatus, or to have subdued the flames and extinguished the fire. Useful services of any kind rendered to a vessel or her cargo, exposed to any impending danger and imminent peril of loss or damage, may entitle those who render such services to salvage reward. Persons assisting to extinguish a fire on board a ship, or assisting to tow a ship from a dock where she is in imminent danger of catching fire, are as much entitled to salvage Compensation as persons who render assistance to prevent a ship from being wrecked, or in securing a wreck, or protecting the cargo of a stranded vessel. Salvage is the compensation allowed to persons by whose assistance a ship or her cargo has been saved, in whole or in part, from impending peril on the sea, or in recovering such property from actual loss, as in cases of shipwreck, derelict, or recapture. Success is essential to the claim; as if the property is not saved, or if it perish, or in ease of capture if it is not retaken, no compensation can be allowed. More than one set of salvors, however, may contribute to tbe result, and in such eases all who engaged in the enterprise and materially contributed to the saving of the property, are entitled to share in the reward which the law allows for such meritorious service, and in proportion to the nature, duration, risk, and value of the service rendered. Salvors ai’e not deprived of a remedy because another set of salvors neglect or refuse to join in the suit, nor will such neglect or refusal benefit the libellants by giving them any claim to a larger compensation, as the non-prosecution by one set of salvors enures, not to the libellants prosecuting the claim, but to the owners of the property saved. Cases may also be found where co-salvors who neglected" } ]

[ { "docid": "20438405", "title": "", "text": "part of it or its armament, apparel, tackle or cargo exists at all or, if it does, that it lies in the location at which Smith claims. 178. Moreover, even assuming Smith has discovered an actual shipwreck, as he alleges, he has presented no evidence that he has reduced the shipwreck to his possession. Cf. Deep Sea Research, 523 U.S. at 496,118 S.Ct. 1464 (noting that petitioner sought salvage award “[b]ased on its possession of several artifacts from the [sunken vessel], including china, a full bottle of champagne, and a brass spike from the ship’s hull”). 179. Simply put, Smith has not proven that he has discovered an abandoned shipwreck and has certainly not reduced anything from his discovery to his possession. See Treasure Salvors, 640 F.2d at 571. 180. Accordingly, the Court finds as a matter of law that Smith is not entitled to a declaration of right to title to any alleged abandoned vessel under the law of finds. D. Law of Salvage 181. Alternatively, Smith asserts he is entitled to the right to salvage the object of his discovery to the exclusion of all others and to receive an award under the law of salvage. 182. It is well-settled under the law of salvage that in order to earn entitlement of a salvage award, a salvor must prove three elements: (1) a marine peril; (2) voluntary service rendered when not required as an existing duty or from a special contract; and (3) success in whole or in part, or contribution to, the success of the operation. The SABINE, 101 U.S. 384, 384, 25 L.Ed. 982 (1879); United States v. Ex-USS Cabot/Dedalo, 297 F.3d 378, 381 (5th Cir.2002); Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 984 (5th Cir.1998) (“An award oí salvage is generally appropriate when property is successfully and voluntarily rescued from marine peril.”). The Court addresses each element in turn. (i) Maritime Peni 183. “[T]he peril required in a salvage service need not necessarily be one of imminent and absolute danger. The property must be in danger, either presently or reasonably to be" }, { "docid": "20438408", "title": "", "text": "has listed to the side and its cargo has spread northward under Melon Lake. 188. Moreover, Smith believes expanding clay has contributed to wide distribution of the wreckage in the Work Area and that the alleged vessel is at risk of liquification due to the expanding clay in which the alleged vessel is submerged. 189. Assuming, without deciding, that the alleged vessel exists where Smith claims it exists, the Court determines that it is in marine peril and subject to loss to the elements. See Platoro Ltd., 695 F.2d at 901 & n. 9; Cobb Coin, 549 F.Supp. at 557. (ii) Voluntary Efforts to Salvage 190. Next, in order to recover under the law of salvage, a salvor also must prove that the efforts undertaken to salvage the property at peril were undertaken voluntarily and not pursuant to some other obligation or duty. See, e.g., Legnos v. M/V Olga Jacob, 498 F.2d 666, 672 (5th Cir.1974); Cobb Coin, 549 F.Supp. at 557. 191. There appears to be no dispute that any efforts Smith expended in his belief that an abandoned vessel exists were made voluntarily, and he is under no contractual obligation or other duty to make such undertaking. 192. The Court must determine, then, whether Smith’s actions have contributed to the successful salvage of the abandoned property for which he seeks a salvage award. (in) Salvage Success 193. It is axiomatic that success is a prerequisite to earning a salvage award. The Blackwall, 77 U.S. (10 Wall.) 1, 12, 19 L.Ed. 870 (1869) (“Success is essential to the claim.”); W. Coast Shipping Brokers Corp. v. The Ferry “CHUCHEQUERO,” 582 F.2d 959, 960 (5th Cir.1978) (“The rule in salvage cases has always been that only success is rewarded.”). 194. This rule necessitates some showing that the would-be salvor has saved property from peril. See The SABINE, 101 U.S. at 384. 195. In a case such as this involving an alleged sunken treasure ship, this showing no doubt is made by bringing before the Court some portion of the res or fruit of the salvage operation. See e.g., Treasure Salvors, 569" }, { "docid": "4402222", "title": "", "text": "in the interests of public policy, to encourage the humanitarian rescue of life and property at sea, and to promote maritime commerce. See generally, The Blackmail, 77 U.S. 1 (10 Wall.), 19 L.Ed. 870 (1869); Seven Coal Barges, 21 F.Cas. 1096, 1097-8 (C.C.D.Ind.1870) (No. 12, 677) (quoted in 3A M. Norris, Benedict on Admiralty § 232 at 19-3 (1992)) (“The very object of the law of salvage is to promote commerce and trade, and the general interest of the country, by preventing the destruction of property, and to accomplish this by appealing to the personal interest of the individual as a motive of action, with the assurance that he will not depend upon the owner of the property he saves for the measure of his compensation, but to a court of admiralty, governed by principles in equity.”); Seaman v. Tank Barge OC601, 325 F.Supp. 1206, 1209 (S.D.Ala.1971). The fact that the salvor’s efforts have pecuniary motivations is immaterial to his entitlement to a salvage award, as long as the prerequisites for a salvage claim have been proven. See Flagship Marine Serv., Inc. v. Belcher Towing Co., 761 F.Supp. 792, 795 (S.D.Fla.1991), rev’d on other grounds, 966 F.2d 602 (11th Cir.1992); Unnamed But Identifiable Master and Crew v. Certain Unnamed Vessel, 592 F.Supp. 1191 (S.D.Fla.1984). 2. Three elements for a valid salvage claim must be found: (a) a maritime peril from which the ship or other property could not have been rescued without the salvor’s assistance; (b) a voluntary act by the salvor under no pre-existing official or contractual duty to the owner; and (c) success in saving, or in helping to save at least part of the property at risk. See The Sabine, 101 U.S. 384, 25 L.Ed. 982 (1879); Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511 (11th Cir.1985); Belcher, 761 F.Supp. at 795. 3. It is undisputed that without the collective salvage efforts, the “Asylum” would have sunk on the afternoon of May 5, 1991. It is also undisputed that Ocean Services was in no way under prior obligation to the “Asylum” or its owners" }, { "docid": "18432078", "title": "", "text": "was voluntarily rendered; and (3) that the effort was successful in whole or in part. Platoro Ltd. v. Unidentified Remains of a Vessel, 518 F.Supp. 816, 820 (W.D.Tex. 1980), citing Legnos v. M/V Olga Jacob, 498 F.2d 666, 669 (5th Cir.1974). It is established in this Circuit that a marine peril exists in an ancient, abandoned shipwreck for purposes of meeting the requirements of a valid salvage action. Platoro Ltd. v. Unidentified Remains of a Vessel, 614 F.2d 1051, 1055 (5th Cir.1980); Treasure Salvors I, 569 F.2d 330, 337 and n. 13 (5th Cir.1978), quoting Norris, The Law of Salvage § 185 (1958). Such peril exists even where the general location of a wreck is known, as it is here. Platoro, 614 F.2d 1055, and Treasure Salvors I, 569 F.2d at 337. Because the defendant vessel was still in the peril of being lost through the action of the elements or of pirates and was not being successfully salved when the plaintiff undertook its salvage operation, it was subject to a “marine peril” for purposes of the plaintiff’s salvage claim. The plaintiff has satisfied the second and third elements of a salvage claim as well. There is no dispute that Cobb Coin voluntarily rendered the salvage service. It was under no pre-existing duty to save the vessel and its cargo and apparel pursuant to, e.g., a contract or provision of law. Further, the Findings of Fact entered above by this Court amply demonstrate that Cobb Coin successfully saved property of considerable historic, archeological, and monetary value. B. Salvage Award. As this Court held in its October 2, 1981, injunctive order, the public policy underlying salvage awards in the Admiralty Court is to hold out a “continuing incentive to undertake the physical and financial risks entailed in salvage operations and to bring the property thus recovered into court for a salvage determination.” Cobb Coin, 525 F.Supp. at 207. The elements considered by the Admiralty Court in determining a salvage award are: (1) the labor expended by the salvors in rendering the salvage service; (2) the promptitude, skill and energy displayed in" }, { "docid": "16678298", "title": "", "text": "entitled to a salvage award for the recovery of the M/V “Potential.” The three elements of a salvage claim are: (1) that marine peril exists; (2) that the service was voluntarily rendered; and (3) that the effort was successful in whole or in part. Cobb Coin Co., Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 557 (S.D.Fla.1982); Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1515 (11th Cir.1985); The Clarita, 90 U.S. (23 Wall.) 1, 16, 23 L.Ed.2d 146 (1874). It is well established in this Circuit that a marine peril exists where a vessel is in danger of being partially or totally lost through the action of the elements and where it is not being successfully salved when the plaintiff voluntarily undertakes its salvage operation. Because the M/V “Potential” was in peril of sinking and breaking apart if it had been simply pulled off its impaled position on the massive rock of the East Jetty to the Northwest Channel leading to the Key West Harbor, without the prior affixing of substantial floatation gear, it was subject to “marine peril” for purposes of the Plaintiffs salvage claim. No contest is made by Defendants over the fact that the vessel was in peril and that salvage efforts were not being done by anyone at the time of the arrival of the Plaintiffs salvage boats. The Plaintiffs have satisfied the second and third elements of a salvage claim as well. There is no dispute that the Plaintiffs voluntarily rendered the salvage service and are entitled to a salvage award. The Plaintiffs were under no preexisting duty to save the vessel or its passengers. Further, the findings of fact entered above by this Court clearly demonstrate that the Plaintiffs successfully saved a vessel, of substantial monetary value. B. THE SALVAGE AWARD The public policy underlying salvage awards in the Admiralty Court is to hold out a “continuing incentive to undertake the physical and financial risk entailed in salvage operations and to bring the property thus recovered into court for a salvage determination.” Cobb Coin Co., Inc. v." }, { "docid": "21861924", "title": "", "text": "the land on and/or in which the shipwreck is located, it owns the shipwreck. 2. Salvage Award. Failing in her efforts to acquire title to the shipwreck, appellant urges that she should be given a salvage award for the cost of recovering the articles from the wreck. A claim for a salvage award requires that three elements be shown: (1) A maritime peril from which the ship or other property could not have been rescued without the salvor’s assistance. (2) A voluntary act by the salvor — that is, he must be under no official or legal duty to render the assistance. (3) Success in saving, or in helping to save at least part of the property at risk. G. Gilmore & C. Black, Jr., The Law of Admiralty 534-35 (1975); See also Cobb Coin Co. v. Unidentified Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 547 (S.D.Fla.1982). Plaintiff’s salvage efforts were directed toward a vessel that was not lost or suffering any marine peril. Indeed, the owner of the property may not even have desired for the property to be “rescued.” When and if the United States determined it to be in the best interest of the administration of Biscayne National Park to remove the shipwreck, it was certainly capable of “rescuing” the property at that time without plaintiff’s assistance. Furthermore, plaintiff’s salvage efforts were not successful. The articles removed from the shipwreck site were not marked or identified so as to preserve their archeological provenience. As the district court points out “the plaintiff’s unauthorized disturbance of one of the oldest shipwrecks in the Park and his unscientific removal of the artifacts did more to create a marine peril than to prevent one.” The lower court correctly denied plaintiff’s prayer for a salvage award. A contrary result would encourage persons to enter Biscayne National Park and to continue the unauthorized removal of articles from the various shipwrecks there located which were sought to be protected by the creation of that park. Because we can find no error whatsoever in the conclusions or analysis of the district court, we affirm." }, { "docid": "16678300", "title": "", "text": "Unidentified Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186, 207 (S.D.Fla.1981). The United States Supreme Court in The SABINE, 101 U.S. 384, 384, 11 Otto 384, 25 L.Ed. 982 (1879) held: “Salvage is the compensation allowed to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril, or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict, or recapture.” “The elements considered by an Admiralty Court in determining a salvage award are: (1) The labor expended by the salvors in rendering the salvage service; (2) the promptitude, skill and energy displayed in rendering the service and saving the property; (3) the value of the property employed by the salvors in rendering the service and the danger to which such property was exposed; (4) the risk incurred by the salvors in securing the property from the impending peril; (5) the value of the property saved; and (6) the degree of danger from which the property was rescued.” Cobb Coin, 549 F.Supp. at 557; Cobb Coin, 525 F.Supp. at 207, n. 15 (citing The Blackwall, 77 U.S. (10 Wall.) 1, 14, 19 L.Ed. 870 (1869)); see also 3A Martin J. Norris, BENEDICT ON ADMIRALTY: THE LAW OF SALVAGE § 244 (7th ed.1998). These elements have been each separately carefully considered by the Court and, based upon the Court’s foregoing findings of fact, supra, it is clear that the Plaintiff/Salvors are entitled to a full reasonable salvage award. The Defendants admit that Plaintiff/Sal-vors are entitled to a salvage award for their services in saving the M/V “Potential.” However, they urge the Court to set a low value award based upon factual assertions (a) that the salvors did not property preserve and protect the vessel during the period November 11-14, 2001 that it was in their possession and control; (b) that the danger and risk to salvors was insubstantial; (c) that there was no pollution to the environment. Items (a) and (b) have been thoroughly examined and determined by the Court in" }, { "docid": "16678294", "title": "", "text": "or three days after the settlement had been agreed upon, Plaintiffs received a call from Mr. Sanislo advising them that he had been relieved from further responsibility by the insurance company and was “off the case.” Mr. Bob Wendling next contacted the Plaintiff/Salvors and announced that “I am here representing the insurance company as the replacement ma rine surveyor.” Mr. Perkins showed him the boat where it was stored in the boatyard. Mr. Wendling testified that he arrived in Key West on November 20, 2001, five or six days after the salvage vessel had been delivered over to the custody of the Defendant insurance company on November 14, 2001. R & R Diesel had been instructed by a representative of the Defendant, Northern Insurance Company of New York, not to do anything further on the boat or engines because the vessel was going to be moved from Key West, Florida. At this point in time both engines of the M/V “Potential” were preserved, manually and electrically “turned,” and were run-able. The engines and generator of the M/V “Potential” were “pickled” and preserved. Mr. Wendling satisfied himself that the R & R Diesel bill and the Spencer’s Boatyard bill were each fair, reasonable and accurate and authorized full payment by the Defendant insurance company. Mr. Wendling made arrangement for the M/V “Potential” to be towed from Key West to the Marine Max in Ft. Lauderdale where it was sold to Bent Boats for $174,219.40. The salvage services rendered by the Plaintiff/Salvors resulted in the subject vessel being successfully removed from the marine peril to which it was subject. The owner of the M/V “Potential” accepted the salvage services rendered by the Plaintiff/Salvors. The Plaintiff/Salvors freely and voluntarily rendered salvage services and held no preexisting duty or obligation to do so. The Plaintiff/Salvors by virtue of having voluntarily and successfully delivered the subject vessel out of its marine peril, is entitled to a liberal salvage award which is based upon a percentage of the post-salvage, pre-repair value of the subject vessel and which takes into consideration the risk posed to the subject" }, { "docid": "20438406", "title": "", "text": "to salvage the object of his discovery to the exclusion of all others and to receive an award under the law of salvage. 182. It is well-settled under the law of salvage that in order to earn entitlement of a salvage award, a salvor must prove three elements: (1) a marine peril; (2) voluntary service rendered when not required as an existing duty or from a special contract; and (3) success in whole or in part, or contribution to, the success of the operation. The SABINE, 101 U.S. 384, 384, 25 L.Ed. 982 (1879); United States v. Ex-USS Cabot/Dedalo, 297 F.3d 378, 381 (5th Cir.2002); Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 984 (5th Cir.1998) (“An award oí salvage is generally appropriate when property is successfully and voluntarily rescued from marine peril.”). The Court addresses each element in turn. (i) Maritime Peni 183. “[T]he peril required in a salvage service need not necessarily be one of imminent and absolute danger. The property must be in danger, either presently or reasonably to be apprehended.” Treasure Salvors, 569 F.2d at 337 n. 13 (quoting Norris, The Law of Salvage § 185 (1958)); see The Leonie O. Louise, 4 F.2d 699, 700 (5th Cir.1925) (articulating the standard for marine peril as danger “reasonably to be apprehended”). 184. Courts have found maritime peril to exist in cases of ancient, abandoned shipwrecks. See Cobb Coin Co. v. The Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F.Supp. 540, 557 (S.D.Fla.1982) (citing Platoro Ltd. v. Unidentified Remains of a Vessel, 614 F.2d 1051, 1055 (5th Cir.1980)). 185. And, where the location of an abandoned shipwreck is unknown, it is said to be at marine peril as a matter of law. See Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 901 & n. 9 (5th Cir.1983). 186. Moreover, a vessel in peril of being lost through the action of the elements or of pirates, and not being salvaged, is subject to maritime peril. Cobb Coin, 549 F.Supp. at 557. 187. Smith testified that, according to his metal detector readings, the vessel" }, { "docid": "6327461", "title": "", "text": "to carry the burden of proving to what extent its salvage efforts “contributed to preserving the S. S. AMOCO VIRGINIA and its cargo. * * * ” The plaintiff makes its claim for salvage under the general maritime and admiralty law of the United States of America. The claim fits the salvage— maritime law requirements, i. e. the S. S. AMOCO VIRGINIA disaster was a “maritime peril from which the ship [and its cargo] * * * could not have been rescued without the salvor’s assistance. * * * The act must be successful in saving, or in helping to save, at least a part of the property at risk.” As stated by the Supreme Court in The Blackwall, 77 U.S. (10 Wall.) 1, 12, 19 L.Ed. 870 (1869), “Salvage is the compensation allowed to persons by whose assistance a ship or her cargo has been saved, in whole or in part, from impending peril on the sea. * * * Success is essential to the claim. * * * More than one set of salvors, however, may contribute to the result, and in such cases all who engaged in the enterprise and materially contributed in the saving of the property, are entitled to share in the reward which the law allows. * * * ” The remaining requirement to sustain this salvage claim is that “[t]he salvor’s act must be voluntary, that is, he must be under no official or legal duty to render the assistance.” Gilmore & Black, supra; Davey v. The Mary Frost, 7 Fed. Cas. No. 3,591, p. 11 (E.D.E.D.Texas— 1876); Thornton v. The Livingston Roe, 90 F.Supp. 342 (S.D.N.Y.1950). It is on this legal point that the American Oil Company resists the salvage claim. It argues that the salvage services rendered by the United States Coast Guard represented nothing more than a fulfillment of its pre-existing legal duty to render such services to a vessel in distress. We adopt the findings of the lower court and agree with the American Oil Company that the salvage services rendered herein were the acts and services of the" }, { "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": "4402221", "title": "", "text": "and equipment. 11. Plaintiff’s expert testified that the pre-casualty value of the “Asylum” was $103,000 based on the value of similar boats of comparable age estimated by the N.A.D.A. Large Boat Appraisal Guide. Defendant’s expert testified that the B.U.C. and A.B.O.S. marine appraisal guides suggested an $80,000 pre-casualty value of the “Asylum.” 12. The “Asylum” was advertised for sale through a salvage broker. The Browns received several bids, finally accepting the highest on August 23, 1991 and selling the boat for $16,100. The vessel was marketed in a commercially reasonable manner and the sale was negotiated in an arm’s length transaction. Conclusions of Law 1. The admiralty and maritime law of salvage rewards the voluntary salvor for his successful rescue of life or property imperiled at sea. See Mason v. The Blaireau, 6 U.S. 240, 266 (2 Cranch), 2 L. Ed. 266 (1804) (Marshall, C.J.). The award on an action for salvage — unknown for land activities — is not one of quantum meruit as compensation for work performed, but is a bounty historically given in the interests of public policy, to encourage the humanitarian rescue of life and property at sea, and to promote maritime commerce. See generally, The Blackmail, 77 U.S. 1 (10 Wall.), 19 L.Ed. 870 (1869); Seven Coal Barges, 21 F.Cas. 1096, 1097-8 (C.C.D.Ind.1870) (No. 12, 677) (quoted in 3A M. Norris, Benedict on Admiralty § 232 at 19-3 (1992)) (“The very object of the law of salvage is to promote commerce and trade, and the general interest of the country, by preventing the destruction of property, and to accomplish this by appealing to the personal interest of the individual as a motive of action, with the assurance that he will not depend upon the owner of the property he saves for the measure of his compensation, but to a court of admiralty, governed by principles in equity.”); Seaman v. Tank Barge OC601, 325 F.Supp. 1206, 1209 (S.D.Ala.1971). The fact that the salvor’s efforts have pecuniary motivations is immaterial to his entitlement to a salvage award, as long as the prerequisites for a salvage claim have" }, { "docid": "16678299", "title": "", "text": "affixing of substantial floatation gear, it was subject to “marine peril” for purposes of the Plaintiffs salvage claim. No contest is made by Defendants over the fact that the vessel was in peril and that salvage efforts were not being done by anyone at the time of the arrival of the Plaintiffs salvage boats. The Plaintiffs have satisfied the second and third elements of a salvage claim as well. There is no dispute that the Plaintiffs voluntarily rendered the salvage service and are entitled to a salvage award. The Plaintiffs were under no preexisting duty to save the vessel or its passengers. Further, the findings of fact entered above by this Court clearly demonstrate that the Plaintiffs successfully saved a vessel, of substantial monetary value. B. THE SALVAGE AWARD The public policy underlying salvage awards in the Admiralty Court is to hold out a “continuing incentive to undertake the physical and financial risk entailed in salvage operations and to bring the property thus recovered into court for a salvage determination.” Cobb Coin Co., Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186, 207 (S.D.Fla.1981). The United States Supreme Court in The SABINE, 101 U.S. 384, 384, 11 Otto 384, 25 L.Ed. 982 (1879) held: “Salvage is the compensation allowed to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril, or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict, or recapture.” “The elements considered by an Admiralty Court in determining a salvage award are: (1) The labor expended by the salvors in rendering the salvage service; (2) the promptitude, skill and energy displayed in rendering the service and saving the property; (3) the value of the property employed by the salvors in rendering the service and the danger to which such property was exposed; (4) the risk incurred by the salvors in securing the property from the impending peril; (5) the value of the property saved; and (6) the degree of danger from which the" }, { "docid": "4402223", "title": "", "text": "been proven. See Flagship Marine Serv., Inc. v. Belcher Towing Co., 761 F.Supp. 792, 795 (S.D.Fla.1991), rev’d on other grounds, 966 F.2d 602 (11th Cir.1992); Unnamed But Identifiable Master and Crew v. Certain Unnamed Vessel, 592 F.Supp. 1191 (S.D.Fla.1984). 2. Three elements for a valid salvage claim must be found: (a) a maritime peril from which the ship or other property could not have been rescued without the salvor’s assistance; (b) a voluntary act by the salvor under no pre-existing official or contractual duty to the owner; and (c) success in saving, or in helping to save at least part of the property at risk. See The Sabine, 101 U.S. 384, 25 L.Ed. 982 (1879); Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511 (11th Cir.1985); Belcher, 761 F.Supp. at 795. 3. It is undisputed that without the collective salvage efforts, the “Asylum” would have sunk on the afternoon of May 5, 1991. It is also undisputed that Ocean Services was in no way under prior obligation to the “Asylum” or its owners and responded voluntarily pursuant to its business practice of monitoring the emergency radio channels for and responding to calls for distress. The case at bar is unlike the situation in Flagship Marine Services, Inc. v. Belcher Towing Co., 966 F.2d 602 (11th Cir.1992), which held that the salvage services were not provided voluntarily, and thus a claim for salvage could not exist. In that case, the Eleventh Circuit found that the words exchanged between the distressed captain and the salvor to the effect that they would “worry about the price later” created a binding oral engagement in which the distressed captain agreed to pay the salvor for its services whether or not the services were successful. See id. at 605. Notably, the parties in Belcher had prior dealings in which the salvor had previously done salvage work for the captain on a flat running rate basis. Based on the prior course of dealings between the parties, and the verbal exchange at the time of the salvage, the Eleventh Circuit found that the salvor “was no" }, { "docid": "16678274", "title": "", "text": "and evidence presented during the non-jury trial of this case in November 2002: Plaintiffs, Southernmost Marine Services, Inc., d/b/a Sea Tow Key West, Key West Harbor Service, Inc. and Denhart Marine Consultants, Inc., are professional salvors and operate as such in Key West, Florida. Defendant, Jeffrey Keierleber, was the owner of the M/V “Potential,” a 2000 54-foot Sea Ray Dancer, on November 11, 2001. He had purchased the vessel new, one year before for $750,000. Defendant, Northern Insurance Company of New York issued a policy of insurance to the owner(s) of the M/V “Potential,” insuring its hull, machinery, tender, tackle, equipment, furnishings, appurtenances and contents on an agreed value basis of 3/4 million dollars. The policy of insurance was in full force and effect on November 11, 2001, through November 13, 2001. On November 11, 2001, Plaintiff, Sea Tow Key West, responded to a marine assistance request broadcast (MARB) from U.S. Coast Guard Group Key West and located the M/V “Potential” hard aground on a rock jetty. Aboard the M/V “Potential” were the owner, Jeffrey Keierleber, and three (3) passengers. The vessel had suffered severe damage to its hull and was in danger of sinking and of further damage from wave action and tides moving the boat impaled on the rock jetty. There were holes in the hull and her running gear and rudders were destroyed. The main cabin of the vessel was filled with approximately four (4) feet of sea water, oil and fuel and was in peril on the date of the salvage operations. The engine compartment was completely under the ocean and filled with sea water and oil. The salvors were able to place an absorbent boom surrounding the engine compartment and contain the oil spill to the interior of the engine room. The owner Defendant, Jeffrey Keierle-ber read and signed a salvage contract, presented to him by members of the Plaintiff/Salvage team prior to their commencing salvage and prior to his leaving to return to Key West. The owner and his passengers were advised to remove any of their personal property and valuables that they wished" }, { "docid": "21861923", "title": "", "text": "ownership in this case. The ship is buried in the soil. The soil belongs to the United States as part of its national park system. In 1973, the land was transferred to the United States by the State of Florida for the purpose of allowing the United States to establish a national park area partially because of the historical value of the many shipwreck sites to be found in the area. When the United States acquired title to the land from Florida in 1973, it also acquired title to the shipwrecks embedded in that soil. Since 1975 the United States has had constructive possession of the wreck by virtue of a Preliminary Archeological Assessment of Biscayne National' Monument prepared for the Park Service. This assessment noted the presence of an 18th century shipwreck in the area of the wreck. Furthermore, the United States has had the power and the intention to exercise dominion and control over the subject shipwreck. Thus the United States has never legally lost the subject shipwreck and, as the owner of the land on and/or in which the shipwreck is located, it owns the shipwreck. 2. Salvage Award. Failing in her efforts to acquire title to the shipwreck, appellant urges that she should be given a salvage award for the cost of recovering the articles from the wreck. A claim for a salvage award requires that three elements be shown: (1) A maritime peril from which the ship or other property could not have been rescued without the salvor’s assistance. (2) A voluntary act by the salvor — that is, he must be under no official or legal duty to render the assistance. (3) Success in saving, or in helping to save at least part of the property at risk. G. Gilmore & C. Black, Jr., The Law of Admiralty 534-35 (1975); See also Cobb Coin Co. v. Unidentified Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 547 (S.D.Fla.1982). Plaintiff’s salvage efforts were directed toward a vessel that was not lost or suffering any marine peril. Indeed, the owner of the property may not even have" }, { "docid": "11407846", "title": "", "text": "of a State.” 43 U.S.C. § 2105(a)(1). The ASA simultaneously transfers title to the abandoned shipwreck “to the State in or on whose submerged lands the shipwreck is located.” 43 U.S.C. § 2105(e). The ASA also announces that “[t]he law of salvage ... shall not apply to abandoned shipwrecks to which section 2105 of this title applies.” 43 U.S.C. § 2106(a). Zych contends that the law of salvage falls clearly within the admiralty and maritime law and that the ASA therefore violates the Constitution. Zych concedes that the law of finds provides the State of Illinois with title to the Seabird, He argues that the law of salvage and The Davis, Tl U.S. (10 Wall.) 15, 19 L.Ed. 875 (1869), require Illinois to pay him a salvage award for his efforts to salve the Seabird. It is a clever argument. Salvage is a reward given to persons who save or rescue a ship or a ship’s goods from shipwreck, fire, or capture. Cope v. Vallette Dry Dock Co., 119 U.S. 625, 628, 7 S.Ct. 336, 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." }, { "docid": "16678297", "title": "", "text": "it had been delivered to Spencer’s Boatyard in Key West. Mr. Sanislo received six calls in one afternoon regarding purchasing the boat for its salvage value. He testified that he received one telephone offer of $300,000 and was negotiating for a sales price of approximately $350,000 at the time he was removed from the case. That Defendant, Northern Insurance Company of New York, benefitted from the salvage of the M/V “Potential” and is pecuniarily hable for any loss of or damage to the vessel. Although the Plaintiff/Salvors have made demand for said salvage award, no payment has been made for these services. The salvors retained the services of attor neys and are obligated to pay them a reasonable fee for their services. II. CONCLUSIONS OF LAW This is an Admiralty and Maritime claim within the meaning of Rule 9(h) and Supplemental Admiralty Rule C of the Federal Rules of Civil Procedure. This Court has original jurisdiction over this matter based upon 28 U.S.C. § 1333. A. SALVAGE CLAIM The Court holds, first, that Plaintiffs are entitled to a salvage award for the recovery of the M/V “Potential.” The three elements of a salvage claim are: (1) that marine peril exists; (2) that the service was voluntarily rendered; and (3) that the effort was successful in whole or in part. Cobb Coin Co., Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 557 (S.D.Fla.1982); Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1515 (11th Cir.1985); The Clarita, 90 U.S. (23 Wall.) 1, 16, 23 L.Ed.2d 146 (1874). It is well established in this Circuit that a marine peril exists where a vessel is in danger of being partially or totally lost through the action of the elements and where it is not being successfully salved when the plaintiff voluntarily undertakes its salvage operation. Because the M/V “Potential” was in peril of sinking and breaking apart if it had been simply pulled off its impaled position on the massive rock of the East Jetty to the Northwest Channel leading to the Key West Harbor, without the prior" }, { "docid": "22220238", "title": "", "text": "the question whether the claim for salvage compensation can be sustained in view of the facts set forth in the propositions submitted by the respondents. Salvage is well defined as the compensation allowed to persons by whose assistance a-ship or vessel, or the cargo of the same, or the lives of the persons belonging to the ship or vessel, are saved from danger or loss in cases of shipwreck, derelict capture, or other marine misadventures. Other jurists define it as the service which volunteer adventurers spontaneously render to the owners, in the recovery of property from loss or damage at sea under the responsibility of making restitution and with a lien for their reward. Persons who render such service are called salvors, and a salvor is defined to be a person who, without any particular relation to the ship in distress, proffers useful service and gives it as a volunteer adventurer without any pre-existing contract that connected him with the duty of employing himself for the preservation of the vessel. Enough appears in those definitions to show that the elements necessary to constitute a valid salvage claim are as follows: (1.) A mai’ine peril to the property to be rescued. (2.) Voluntary service not owed to the property as matter of duty. (8.) Success in saving the property or some portion of it from the impending peril. Public policy encourages the hardy and industrious mariner to engage in these laborious and sometimes dangerous enterprises, and with a view to withdraw from him every temptation to dishonesty the law allows him, in case he is successful, a liberal compensation. Those liberal rules as to remuneration were adopted and are administered not only as an inducement to the daring to embark in such enterprises, but to withdraw from the salvors as far as possible every motive to depredate upon the property of the unfortunate owner. Such compensation, however, is not claimable in every case in which work and labor are done for the preservation of a ship and cargo. Suitors, in order to support such a claim, must be prepared to show" }, { "docid": "23404550", "title": "", "text": "of the action unless modified by a subsequent order.” Fed.R.Civ.P. 16(e); see United States v. First National Bank, 652 F.2d 882, 886-87 (9th Cir.1981). The pretrial. order in the present action set April 29, 1983 as the deadline for filing preliminary motions. The defendants filed their motion for summary judgment on March 7, 1984. Although we note that the district court did not dismiss the Sea Alaska action until six weeks after the deadline for filing preliminary motions in the present action, the record reveals that the defendants never requested a modification of the pretrial order to allow the filing of their motion. Accordingly, we conclude that the district court properly denied the motion as untimely. IV The Validity of the Salvage Claim The defendants contend that Dominator’s actions did not establish a valid claim for the salvage of the Sea Alaska. The elements of a salvage claim are as follows: There must be a maritime peril from which the ship or other property could not have been rescued without the salvor's assistance. The salvor’s act must be voluntary — that is, he must be under no official or legal duty to render the assistance. The act must be successful in saving, or in helping to save, at least a part of the property at risk. G. Gilmore & C. Black, The Law of Admiralty § 8-2, at 534-35 (2d ed. 1975); see 3A M. Norris, Benedict on Admiralty § 2 (1983). The defendants do not argue that those three elements — maritime peril, voluntary assistance, and success — were not established. Instead, the defendants assert that the benefits to the Sea Alaska were “indirect” and that Dominator therefore cannot claim a salvage award. In Merritt & Chapman Derrick & Wrecking Co. v. United States, 274 U.S. 611, 613, 47 S.Ct. 663, 664, 71 L.Ed. 1232 (1927), the Court stated that when the benefits from salvage operations are “incidental and indirect,” a salvage claim cannot be sustained “in the absence of request for or acceptance of the service.” The defendants argue that Merritt & Chapman controls this case. We disagree." } ]

[ { "docid": "10357454", "title": "", "text": "answer this question and the eventual selectee’s satisfactory answers to all of the questions provided the basis for appellees’ selection. Tr. I 142-43 (Hogan); March 23, 1979 Transcript of Trial before District Court (“Tr. II”) 9 (Cisco). . Milton v. Brown, 471 F.Supp. 150 (D.D.C. 1979), aff’d in part and rev’d in part sub nom. Milton v. Weinberger, 645 F.2d 1070 (D.C.Cir.1981). . Milton v. Weinberger, 645 F.2d 1070 (D.D.C. 1981), reprinted in Appendix (“App.”) A.7 [hereinafter cited as “Memorandum Opinion”]. . Memorandum Opinion, reprinted in App. A.9 (emphasis added). The court correctly noted, in addition, that on appeal we had approved its application of Day. However, we made clear that “Day applies when there is conceded or proven discrimination.” Milton I, 645 F.2d at 1077 n. 17. . See Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437, 444-45 (5th Cir.) (cited in Day v. Mathews, 530 F.2d at 1085), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). This same burden-shifting principle was followed in International Bhd. of Teamsters v. United States, 431 U.S. 324, 361-62, 97 S.Ct. 1843, 1867-68, 52 L.Ed.2d 396 (1977) and Franks v. Bowman Transp. Co., 424 U.S. 747, 772-73 & n. 32, 96 S.Ct. 1251, 1267-68 & n. 32, 47 L.Ed.2d 444 (1976), both of which involved a “pattern or practice” of disparate treatment. In LULAC v. City of Salinas Fire Dep’t., 654 F.2d 557 (9th Cir.1981), a disparate treatment case, the court held: [o]nce intentional discrimination in a particular employment decision is shown, ... the disadvantaged applicant should be awarded the position retroactively unless the defendant shows “by ‘clear and convincing evidence’ that even in the absence of discrimination the rejected applicant would not have been selected for the open position.” Id. at 558 (quoting Marotta v. Usery, 629 F.2d 615, 618 (9th Cir.1980)). . Nothing in the aforecited “example” is intended to suggest that the employee who is denied the promotion should also be denied back pay, seniority credit, attorney’s fees, costs, equitable relief, or the like, where any such relief is otherwise found to be appropriate. Under" } ]

[ { "docid": "22279751", "title": "", "text": "including prisoners.” Cruz v. Beto (1972) 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263. The problems of prison management have been properly described as “complex and intractable, * * * not readily susceptible of resolution by decree,” a fact which finds expression in “a broad hands-off attitude toward problems of prison administration” as adopted “[tjraditionally,” by “federal courts.” Procunier v. Martinez (1974) 416 U.S. 396, 404, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224. After all, “courts possess no expertise in the conduct and management of correctional institutions.” Fin-ney v. Arkansas Board of Correction (8th Cir. 1974) 505 F.2d 194, 200. Because of this want of judicial expertise, “prison officials must be accorded latitude in the administration of prison affairs,” Cruz v. Beto, supra, 405 U.S. at 321, 92 S.Ct. at 1081; Frazier v. Ciccone (8th Cir. 1974) 506 F.2d 1022, 1024, and their judgments are entitled to “great weight,” Ross v. Blackledge (4th Cir. 1973) 477 F.2d 616, 618; Gardner v. Joyce (5th Cir. 1973) 482 F.2d 283, 285, cert. denied 414 U.S. 1096, 94 S.Ct. 731, 38 L.Ed.2d 555 (1973); Burke v. Levi (E.D.Va.1975) 391 F.Supp. 186, 189. Particularly, “[WJhere state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.” Procunier v. Martinez, supra, 416 U.S. at 405, 94 S.Ct. at 1807. Courts are accordingly limited in their exercise of power in this area to deprivations which represent constitutional abuses and they cannot prohibit a given condition or treatment in prison management unless it reaches the level of an unconstitutional deprivation. It has been well said that “[Cjourts encounter numerous cases in which the acts or conditions under attack are clearly undesirable and are condemned by penologists, but the courts are powerless to act because the practices are not so abusive as to violate a constitutional right.” Note, Decency and Fairness: An Emerging Judicial Role in Prison Reform, 72 Va.L.Rev. 841, 843 (1971). This does not mean that courts must never intervene in prison administration. Recent decisions have repeatedly affirmed that a prison inmate is not stripped" }, { "docid": "9614483", "title": "", "text": "reh’g denied, 456 F.2d 1303, cert. denied, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972), partly on the ground that “Novak was a class action in which the entire system of solitary confinement of the Texas Department of Corrections was challenged as unconstitutional.” 668 F.2d at 365. But the court immediately thereafter made clear that its principal reason for discounting the rele- vanee of Novak was that the latter involved a situation in which prisoners kept in solitary confinement were provided with clothing and blankets whereas the prisoner in the case before it had been given only undershorts and a mattress. 668 F.2d at 365. At no point did the Eighth Circuit suggest that Novak was inappo-site solely because it involved a class action rather than an individual suit. . Thus, for example, of the ten cases cited in note 10, supra, in support of the principle that unacceptable conditions in even one of the dimensions delineated by the majority violate the Constitution, four involved class actions and six involved individual suits. Similarly, of the eight cases cited in note 11, supra, in support of the proposition that courts addressing multifarious violations most often state the constitutional norms thereby infringed as independent requirements, six involved class actions and two (at least at the stage of development at which they were being considered) involved individual suits. . See Note, Developments in the Law — Class Actions, 89 Harv.L.Rev. 1318, 1337-43, 1348-72 (1976) (discussing the theories that currently seem most plausible). . C. Wright, Handbook of the Law of Federal Courts 345 (1976). . Briskin involved pendent, not diversity jurisdiction, but the court held that the same principles apply in the two contexts. 267 F.Supp. at 603. . See also Texas & P. Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905 (1903); Morrison v. Kansas City Coca-Cola Bottling Co., 175 Kan. 212, 263 P.2d 217, 224 (1953). . See Granucci, \"Nor Cruel and Unusual Punishments Infíicted:\" The Original Meaning, 57 Calif.L.Rev. 839 (1969). . See generally Rhodes v. Chapman, 452 U.S. at 354-56," }, { "docid": "22405894", "title": "", "text": "reasonable, although different, program of exercise for inmates in administrative segregation. See Dorrough v. Hogan, 563 F.2d 1259, 1264 (5th Cir. 1977) (per curiam) (affirming on basis of district court’s orders), cert. denied, 439 U.S. 850, 99 S.Ct. 153, 58 L.Ed.2d 153 (1978). . 503 F.Supp. at 1373. . Id.; see id. at 1374. . Part VI(A). . See Leeds v. Watson, 630 F.2d 674, 675-76 (9th Cir. 1980); Dimarzo v. Cahill, 575 F.2d 15, 16, 19 (1st Cir.), cert. denied, 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320 (1978). . Bell v. Wolfish, 441 U.S. at 543 n.27, 99 S.Ct. at 1876 n.27, 60 L.Ed.2d at 471 n.27; accord, Rhodes v. Chapman, 452 U.S. at 348 n.13, 101 S.Ct. at 2400 n.13, 69 L.Ed.2d at 70 n.13; Hoptowit v. Ray, 682 F.2d at 1246, 1256; Jordan v. Wolke, 615 F.2d 749, 753 n.2 (7th Cir. 1980). . Bounds v. Smith, 430 U.S. at 828, 97 S.Ct. at 1498, 52 L.Ed.2d at 83; accord, Cruz v. Hauck, 475 F.2d 475, 476 (5th Cir. 1973). . E.g., Procunier v. Martinez, 416 U.S. at 419, 94 S.Ct. at 1814, 40 L.Ed.2d at 243; see Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 642, 85 L.Ed. 1034, 1035 (1941). . Campbell v. Beto, 460 F.2d 765, 768 (5th Cir. 1972); Andrade v. Hauck, 452 F.2d 1071, 1072 (5th Cir. 1971). . See Bounds v. Smith, 430 U.S. at 825-28, 97 S.Ct. at 1496-98, 52 L.Ed.2d at 81-83; Wolff v. McDonnell, 418 U.S. at 577-80, 94 S.Ct. at 2985-86, 41 L.Ed.2d at 963-964; Corpus v. Estelle, 551 F.2d 68, 70-71 (5th Cir. 1977); Novak v. Beto, 453 F.2d 661, 663-64 (5th Cir. 1971), cert. denied, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972). . 503 F.Supp. at 1367. . Id. . Id. at 1367-68. . Id. at 1368. . Id. at 1369, 1372 & n.207. . Lewis v. Hyland, 554 F.2d 93, 98 (3d Cir.), cert. denied, 434 U.S. 931, 98 S.Ct. 419, 54 L.Ed.2d 291 (1977). . Campbell v. McGruder, 580 F.2d at 526; see Rizzo v. Goode," }, { "docid": "9614481", "title": "", "text": "incarceration, inconsistent with contemporary standards of decency, would violate the Constitution. Thus he observed, “[e]ven if,\" in a given case, “no single condition of confinement would be unconstitutional in itself,” the combined effect of prison conditions may violate the Eighth Amendment — clearly leaving open the possibility that a single degrading circumstance might, by itself, amount to cruel and unusual punishment. Id. at 363, 101 S.Ct. at 2407 (emphasis added). . See Part II.C. infra. . Indeed, the special place of prisoners in our society makes them more dependent on judicial protection than perhaps any other group. Few minorities are so “discrete and insular,” so little able to defend their interests through participation in the political process, so vulnerable to oppression by an unsympathetic majority. Federal courts have a special responsibility to ensure that the members of such defenseless groups are not deprived of their constitutional rights. See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n. 4, 58 S.Ct. 778, 784 n. 4, 82 L.Ed. 1234 (1938); J. Ely, Democracy and Distrust 135-36, 145-70 (1980). . See also Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1979); Procunier v. Martinez, 416 U.S. 396, 405-06, 94 5. Ct. 1800, 1807-06, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). . See Woodhous v. Virginia, 487 F.2d at 890 (“[C]onfinement in a prison where violence and terror reign is actionable.”). . See, e.g., Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437, 444-45 (5th Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). . Indeed, the propriety of such a procedure was recently confirmed by this court. See Milton v. Weinberger, 696 F.2d 94, 99 (D.C.Cir.1982) (dicta). . The single opinion that arguably might constitute an exception to this rule turns out, upon examination, to be ambiguous at best. In Maxwell v. Mason, 668 F.2d 361, 364-65 (8th Cir.1981), the Eighth Circuit distinguished the decision of the Fifth Circuit in Novak v. Beto, 453 F.2d 661 (1971)," }, { "docid": "9614482", "title": "", "text": "135-36, 145-70 (1980). . See also Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1979); Procunier v. Martinez, 416 U.S. 396, 405-06, 94 5. Ct. 1800, 1807-06, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). . See Woodhous v. Virginia, 487 F.2d at 890 (“[C]onfinement in a prison where violence and terror reign is actionable.”). . See, e.g., Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437, 444-45 (5th Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). . Indeed, the propriety of such a procedure was recently confirmed by this court. See Milton v. Weinberger, 696 F.2d 94, 99 (D.C.Cir.1982) (dicta). . The single opinion that arguably might constitute an exception to this rule turns out, upon examination, to be ambiguous at best. In Maxwell v. Mason, 668 F.2d 361, 364-65 (8th Cir.1981), the Eighth Circuit distinguished the decision of the Fifth Circuit in Novak v. Beto, 453 F.2d 661 (1971), reh’g denied, 456 F.2d 1303, cert. denied, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972), partly on the ground that “Novak was a class action in which the entire system of solitary confinement of the Texas Department of Corrections was challenged as unconstitutional.” 668 F.2d at 365. But the court immediately thereafter made clear that its principal reason for discounting the rele- vanee of Novak was that the latter involved a situation in which prisoners kept in solitary confinement were provided with clothing and blankets whereas the prisoner in the case before it had been given only undershorts and a mattress. 668 F.2d at 365. At no point did the Eighth Circuit suggest that Novak was inappo-site solely because it involved a class action rather than an individual suit. . Thus, for example, of the ten cases cited in note 10, supra, in support of the principle that unacceptable conditions in even one of the dimensions delineated by the majority violate the Constitution, four involved class actions and six involved individual suits. Similarly," }, { "docid": "23247571", "title": "", "text": "F.2d 80, 88 (1st Cir. 1979), cert. denied 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980); Wright v. McMann, 460 F.2d 126,130-31 (2d Cir. 1972), cert. denied 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 (1972). Plaintiffs contend that TDC’s use of solitary confinement violates both of these principles. In Novak v. Beto, 453 F.2d 661 (5th Cir. 1971), cert. denied sub nom. Sellars v. Beto, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972), the Fifth Circuit declined to find that the conditions of solitary confinement at TDC, as they existed in 1969, constituted cruel and unusual punishment. The plaintiffs have advanced several arguments in support of the proposition that Novak is no longer controlling, and that the constitutionality of TDC’s solitary confinement conditions should be considered anew. The eighth amendment is not static, but, rather, “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86,101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). It is undeniable that the standards of review for eighth amendment violations have significantly changed since Novak was decided. The majority in Novak believed that the then prevailing interpretations of the eighth amendment required a quite limited scope of review; accordingly, the standards, “barbarous” and “shocking to the conscience”, were applied very restrictively. During the 1970’s however, the Supreme Court greatly expanded the scope of the eighth amendment. Fur-man v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977). The Fifth Circuit, while declining expressly to overrule Novak, has indicated that the relevant criteria for evaluation of Eighth Amendment claims have changed since that decision. Novak is evidence that although national awareness of intolerable prison conditions was beginning to take shape .. . courts were not yet ready to intervene in any" }, { "docid": "23030155", "title": "", "text": "court found that there were “less drastic and less sweeping means of achieving necessary control of such group services than categorically banning them.” Id. at 522. We noted that this finding was “in part a recognition that discrimination in treatment of adherents of different faiths could be justified, if at all, only by the clearest and most palpable proof that the discriminatory practice is a necessity.” Id. It is far from clear what force Cooper should be given in a case not involving the discriminatory treatment of members of a particular faith. We also decided Cooper without the benefit of much of the Supreme Court jurisprudence in the area of inmate rights, most notably Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2827, 41 L.Ed.2d 495 (1974); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In Cruz, for example, the Supreme Court held that an inmate may not be “denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.” Cruz, 405 U.S. at 331, 92 S.Ct. at 1081 (emphasis added). Thus, we do not read Cooper as requiring that we append a “least restrictive alternative” qualifier to the standard set forth in Madyun v. Franzen, 704 F.2d 954 (7th Cir.), cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983), that regulations affecting an inmate’s free-exercise right be “reasonably adapted” to achieving an important penological objective. . As we noted earlier, we do not know what changes the task force recommended, or whether those recommendations were adopted by officials at.Marion. We also do not know whether the closed-circuit television system for religious broadcasts has been installed. . At the oral argument on Miller’s motion, Caldwell stated that" }, { "docid": "22947859", "title": "", "text": "be flushed from the outside. The infamous Draper “doghouse” is a separate building, locked from the outside, with no guard stationed inside. Inmates in punitive isolation received only one meal per day, frequently without utensils. They were permitted no exercise or reading material and could shower only every 11 days. Punitive isolation has been used to punish inmates for offenses ranging from swearing at guards and failing to report to work on time, to murder. In light of the foregoing facts, this Court has a clear duty to require the defendants in these cases to remedy the massive constitutional infirmities which plague Alabama’s prisons. It is with great reluctance that federal courts intervene in the day-to-day operation of state penal systems, Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Novak v. Beto, 453 F.2d 661, 671 (5th Cir. 1971); Diamond v. Thompson, 364 F.Supp. 659, 662 (M.D.Ala.1973), a function they are increasingly required to perform. While this Court continues to recognize the broad discretion required for prison officials to maintain orderly and secure institutions, Procunier v. Martinez, 416 U.S. at 404-05, 94 S.Ct. 1800; Diamond v. Thompson, 364 F.Supp. 659 (M.D.Ala.1973); Newman v. Alabama, 349 F.Supp. 278 (M.D.Ala. 1972), aff’d in part 503 F.2d 1320 (5th Cir. 1974), cert. denied 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975), constitutional deprivations of the magnitude presented here simply cannot be countenanced, and this Court is under a duty to, and will, intervene to protect incarcerated citizens from such wholesale infringements of their constitutional rights. See Procunier v. Martinez, 416 U.S. at 405-06, 94 S.Ct. 1800; Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Federal litigation by prisoners alleging systemic constitutional deficiencies has mushroomed in recent years. There has been growing recognition by the courts that prisoners retain all rights enjoyed by free citizens except those necessarily lost as an incident of confinement. See Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41" }, { "docid": "18579197", "title": "", "text": "state interests are at stake in the prison context, such as the maintenance of institutional security, and the preservation of internal order and discipline. Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979); Pell, 417 U.S. at 822-23, 94 S.Ct. at 2804. The Supreme Court has stressed repeatedly the importance of judicial recognition of the expertise of prison administrators, and the need for deference to experienced prison officials’ judgment. Bell, 441 U.S. at 547, 99 S.Ct. at 1878; Jones, 433 U.S. at 126, 97 S.Ct. at 2538; Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1973). The Supreme Court has also emphasized, however, that inmates retain those constitutional rights that are not inconsistent with their status as prisoners or with the legitimate penological goals of the corrections system. Jones, 433 U.S. at 125, 97 S.Ct. at 2537; Pell, 417 U.S. at 822, 94 S.Ct. at 2804. While “a healthy sense of realism” may require that federal courts acknowledge their relative incompetence in the area of prison administration, Procunier, 416 U.S. at 405, 94 S.Ct. at 1807, it is also understood that “[w]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.” Id. at 405-06, 94 S.Ct. at 1807-08; see also Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam); Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969). As stated by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), there must be a “mutual accommodation” between the important institutional objective of security and the constitutionally protected rights of prisoners. See also Bell, 441 U.S. at 546, 99 S.Ct. at 1877. However, the standard articulated in St. Claire does not call for such an accommodation. Rather, under St. Claire, a mere declaration by prison officials that certain religious practices raise potential security concerns is sufficient to override a prisoner’s first amendment right to" }, { "docid": "22279750", "title": "", "text": "have access to reading or writing material, to be allowed legal consultation, to have other inmates to converse with, to have his complaints “about prison conditions and prison officials” properly investigated, to be given extra food, and finally, to be allowed sufficient time for exercise and showers. While we might properly restrict our consideration to the privileges which the plaintiff testified he sought, we shall discuss, as the District Court did too, his broader demands as stated in his amended complaint. In assessing the right of the plaintiff to these additional privileges, it must be kept firmly in mind that “ ‘[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system,’ ” Pell v. Procunier (1974) 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (quoting from Price v. Johnston (1948) 384 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356), and that “[Fjederal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ including prisoners.” Cruz v. Beto (1972) 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263. The problems of prison management have been properly described as “complex and intractable, * * * not readily susceptible of resolution by decree,” a fact which finds expression in “a broad hands-off attitude toward problems of prison administration” as adopted “[tjraditionally,” by “federal courts.” Procunier v. Martinez (1974) 416 U.S. 396, 404, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224. After all, “courts possess no expertise in the conduct and management of correctional institutions.” Fin-ney v. Arkansas Board of Correction (8th Cir. 1974) 505 F.2d 194, 200. Because of this want of judicial expertise, “prison officials must be accorded latitude in the administration of prison affairs,” Cruz v. Beto, supra, 405 U.S. at 321, 92 S.Ct. at 1081; Frazier v. Ciccone (8th Cir. 1974) 506 F.2d 1022, 1024, and their judgments are entitled to “great weight,” Ross v. Blackledge (4th Cir. 1973) 477 F.2d 616, 618; Gardner v. Joyce (5th Cir. 1973) 482 F.2d 283, 285, cert. denied" }, { "docid": "133964", "title": "", "text": "trial, and female prisoners. . 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). . 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974). . By stipulation a consolidated hearing was held with respect to both a preliminary and a permanent injunction. At the hearing the court granted plaintiff’s motion for declaration of a class action. . Neither party has contended before this Court, however, that the issue of written standards was not tendered to the trial court. . See Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Gray v. Creamer, 465 F.2d 179, 183 (3d Cir. 1972); Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970). . See Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1201 (3d Cir. 1973); Gray v. Creamer, 465 F.2d 179, 183 (3d Cir. 1972); Collins v. Schoonfield, 344 F.Supp. 257 (D.Md.1972); Cf. Gittlemacker v. Prasse, 428 F.2d 1, 3-4 (3d Cir. 1970). . Owens v. Brierly, 452 F.2d 640, 642 (3d Cir. 1971); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Fortune Society v. McGinnis, 319 F.Supp. 901, 905 (S.D.N.Y.1970). . Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972). . 417 U.S. at 822, 94 S.Ct. at 2802. . Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). See Gray v. Creamer, 465 F.2d 179, 184 (3d Cir. 1972). . Compare Pell, 417 U.S. at 822-23, 94 S.Ct. 2800. The security problem present in facilities primarily for pretrial detention should not be underestimated. As the trial judge noted in his opinion, between January 1, 1973 and September 1, 1973, there occurred within the Philadelphia prison system the following disturbances: “(1) 113 cases of assault, near riots, and other incidents requiring police intervention; (2) a homicide of a Holmesburg Prison resident . ; (3) the" }, { "docid": "1721476", "title": "", "text": "cert. denied, 410 U.S. 916, 93 S.Ct. 973, 35 L.Ed.2d 279 (1973). . Wolff v. McDonnell, supra note 99, 418 U.S. at 555-56, 94 S.Ct. at 2974-75. See, e.g., Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (religious freedom); Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971) (access to courts); Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (equal protection). . Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968)). . Id. 434 U.S. at 109, 98 S.Ct. at 332 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975)). . United States v. Lilly, supra note 99, 576 F.2d at 1244 (quoting Boyd v. United States, 116 U.S. 616, 625, 65 S.Ct. 524, 529, 29 L.Ed. 746 (1886)). . Bell v. Wolfish, supra note 97, 441 U.S. at 547, 99 S.Ct. at 1878. . Memorandum Opinion, supra note 9, at 1360-61, J.App. 30. . Memorandum Opinion, supra note 9, at 1360-61, J.App. 30. Cf. United States v. Vallez, 653 F.2d 403, 406 (9th Cir. 1981) (“This court has ruled ... that a prison inmate does have a reasonable expectation of privacy in a sealed letter.” (citing United States v. Savage, supra note 99, 482 F.2d at 1373)); Bonner v. Coughlin, supra note 99, 517 F.2d at 1317 (in civil rights suit, prison administration must establish the reasonableness of seizing envelope containing prisoner’s trial transcript). . Memorandum Opinion; supra note 9, at 1358, 29, J.App. 25, 29. . Cf. Procunier v. Martinez, 416 U.S. 396, 415, 94 S.Ct. 1800, 1812, 40 L.Ed.2d 224 (1974) (striking down prison regulation that allowed “prison officials and employees to apply their own personal prejudices and opinions as standards”). In Bell v. Wolfish, supra note 97, Justice Rehnquist restated the fourth amendment’s reasonableness standard in the context of a challenge by pretrial detainees to search procedures: “In each case it requires" }, { "docid": "22405844", "title": "", "text": "other portions of their appeal. B. Any violation of this Stipulation shall be immediately reported to the Special Master, and the party found to be in violation shall be given a reasonable opportunity to correct any deficiency. C. All prisoner witnesses for the hearing which began March 15, 1982, who were listed by the Special Master shall be given an election to be transferred to the Huntsville Unit, the Diagnostic Unit, the Wynne Unit or the Goree Unit, under the terms set forth in the Stipulation for the Protection of Witnesses as amended. Once an inmate witness elects such a transfer, he shall be entitled to remain at one of those units until the full implementation of this Stipulation is achieved. Any inmate not making such an election within fifteen days after the Court’s approval of this Stipulation shall be deemed to have elected not to transfer. D. This Stipulation shall be submitted to the Court for its approval pursuant to F.R. Civ.P. 23(e). . Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935, 950 (1974). . See Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447, 483 (1979); Procunier v. Martinez, 416 U.S. 396, 404-07, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224, 235-236 (1974); Montana v. Commissioners Court, 659 F.2d 19, 23 (5th Cir. 1981) (per curiam), cert. denied, - U.S. -, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); Campbell v. Beto, 460 F.2d 765, 768 (5th Cir. 1972). See generally Fox, The First Amendment Rights of Prisoners, 63 J.Crim.L., Criminology & Police Sci. 162, 162-64 (1972). . Procunier v. Martinez, 416 U.S. at 404-05, 94 S.Ct. at 1807, 40 L.Ed.2d at 235. . See Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 126, 97 S.Ct. 2532, 2538, 53 L.Ed.2d 629, 638 (1977). . Bell v. Wolfish, 441 U.S. at 562, 99 S.Ct. at 1886, 60 L.Ed.2d at 483. . See id. at 539, 562, 99 S.Ct. at 1874, 1886, 60 L.Ed.2d at 468, 483; Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081," }, { "docid": "18597368", "title": "", "text": "dispute here. . The majority assumes for purposes of this case that prisoners retain some limited fourth amendment interest in bodily privacy. I would affirmatively hold that, at a minimum, society recognizes a prisoner’s expectation of privacy in his or her body as legitimate, and that therefore prisoners retain at least this small degree of fourth amendment protection. See Katz v. United States, 389 U.S. 347, 360-61, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). . I observe that the balancing test prescribed in Wolfish does not validate visual body cavity searches in prisons or detention settings per se. See Jones v. Edwards, 770 F.2d 739, 740 (8th Cir.1985). . One of the prison’s expert witnesses, Dr. Barry Mintzes, a clinical psychologist and former warden of the State Prison at Jackson, Michigan, with a long career in corrections, stated: Within a prison environment, one of the— one of the things that people fear is homosexual attack, and the visual body cavity search serves the purposes of requiring an inmate to bend over and spread his buttocks and in effect psychologically making him feel even more vulnerable because the one thing that most inmates tend to worry about in terms of going to prison. They tend to worry about homosexual assault more than they even worry about physical assault and psychologically tends to be more demeaning and tends to feel more humiliating and tends to leave inmates feeling more vulnerable. Mintzes Deposition at 45-46. . See Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1979); Procurnier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 321-22, 92 S.Ct. 1079, 1081-82, 31 L.Ed.2d 263 (1972) (per curiam). See also Rhodes v. Chapman, 452 U.S. 337, 352, 101 S.Ct. 2392, 2402, 69 L.Ed.2d 59 (1981); Estelle v. Gamble, 429 U.S. 97, 102-05, 97 S.Ct. 285, 290-92, 50 L.Ed.2d 251 (1976)." }, { "docid": "22405845", "title": "", "text": "2974, 41 L.Ed.2d 935, 950 (1974). . See Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447, 483 (1979); Procunier v. Martinez, 416 U.S. 396, 404-07, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224, 235-236 (1974); Montana v. Commissioners Court, 659 F.2d 19, 23 (5th Cir. 1981) (per curiam), cert. denied, - U.S. -, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); Campbell v. Beto, 460 F.2d 765, 768 (5th Cir. 1972). See generally Fox, The First Amendment Rights of Prisoners, 63 J.Crim.L., Criminology & Police Sci. 162, 162-64 (1972). . Procunier v. Martinez, 416 U.S. at 404-05, 94 S.Ct. at 1807, 40 L.Ed.2d at 235. . See Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 126, 97 S.Ct. 2532, 2538, 53 L.Ed.2d 629, 638 (1977). . Bell v. Wolfish, 441 U.S. at 562, 99 S.Ct. at 1886, 60 L.Ed.2d at 483. . See id. at 539, 562, 99 S.Ct. at 1874, 1886, 60 L.Ed.2d at 468, 483; Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263, 267 (1972) (per curiam); Eisenhardt v. Britton, 478 F.2d 855 (5th Cir. 1973) (per curiam). . Unless otherwise noted, in this opinion “TDC” will also be used to refer to the defendants in this case. . TABLE OF CONTENTS Page I. INTRODUCTORY FACTS 1127 II. FAIRNESS OF THE TRIAL 1129 III. SUFFICIENCY OF THE FINDINGS 1132 IV. INTERVENTION BY THE UNITED STATES 1134 V. JOINDER OF THE BOARD OF CORRECTIONS AND ITS INDIVIDUAL MEMBERS 1136 VI. EIGHTH AMENDMENT ISSUES 1137 6.1 Cruel and Unusual Punishment: The Constitutional Standard 1137 6.2 Findings by the District Court 1140 6.21 Overcrowding 1140 6.22 Security and Supervision 1140 6.23 Failure to Ameliorate Overcrowding 1141 6.3 Challenges to the Findings 1141 6.4 Relief Ordered by the District Court 1142 6.41 Overcrowding 1142 6.42 New Facilities 1144 6.43 Reorganization of TDC 1144 6.44 Security and safety 1144 6.5 Application of the Constitutional Standard to the Relief Ordered by the District Court 1144 6.51 Overcrowding: Space Requirements 1146 6.52 Other Measures to Relieve Overcrowding 1148 6.53 Staff Training 1148" }, { "docid": "10346591", "title": "", "text": "custody and, where possible, rehabilitation. II 1. Federal courts are properly reluctant to interfere with the operation of state prison systems. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). This restraint is derived in part from jurisdictional statutes which authorize intervention only on the basis of federal constitutional violations, and in part from notions of comity and due regard for the states’ sovereignty over their own internal affairs. In addition, as the Supreme Court has advised and as this Court is deeply aware, [T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (footnote omitted). Nevertheless, “there is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974); Pell v. Procunier, supra; Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970), aff’d 442 F.2d 304 (8th Cir. 1971); Martinez Rodriquez v. Jiminez, 409 F.Supp. 582 (D.P.R.1976), stay denied 537 F.2d 1 (1st Cir. 1976). Prisoners retain all those rights enjoyed by free citizens except those necessarily lost as an incident of confinement. Pell v. Procunier, 417 U.S. at 822, 94 S.Ct. 2800; Pugh v. Locke, 406 F.Supp. 318, 328 (M.D.Ala.1976). When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. Procunier v. Martinez, 416 U.S. at 405-06, 94 S.Ct. at 1807. Officials who engage in massive, systemic deprivations of prisoners’ constitutional rights are entitled to, and can" }, { "docid": "747779", "title": "", "text": "from the evolving standards of decency that mark the progress of a maturing society.’ Trop v. Dulles, 356 U.S. 86, 100-101 [78 S.Ct. 590, 597-98, 2 L.Ed.2d 596] (1958) (footnote omitted). The amendment prohibits penalties ‘that transgress today’s “broad and idealistic concept of dignity, civilized standards, humanity, and decency.” ’ Hutto v. Finney, 437 U.S. 678, 685 [98 S.Ct. 2565, 2571, 57 L.Ed.2d 522] (1978) quoting Estelle v. Gamble, 429 U.S. 97, 102 [97 S.Ct. 285, 290, 50 L.Ed.2d 251] (1976); Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1966).” The Eighth Circuit also noted in Campbell that prison conditions for unconvicted persons are to be judged against the “due process standard of the Fifth and Fourteenth Amendments.” (citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Further, the Campbell decision makes clear that conditions within a penal institution which are unconstitutional for convicted persons under Eighth Amendment review are likewise an abridgement of the due process guarantees afforded unconvicted persons. Campbell v. Cauthorn, supra, at p. 505; see also, Detainees of Brooklyn House of Detention for Men v. Malcoln, 520 F.2d 392, 398 (2nd Cir. 1975); and Inmates of Allegheny City, Jail v. Pierce, 612 F.2d 754, 762 (3rd Cir. 1979). Prisoners are also afforded other constitutional guarantees. For instance, prisoners possess First Amendment protection for speech and religious practices, see Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972), and due process and equal protection rights under the Fourteenth Amendment, see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), among others. See Generally, Bell v. Wolfish, supra, 99 S.Ct. at 1877. Nonetheless, it is axiomatic that a federal court’s review of the conditions within a state penal institution must be limited solely to those conditions which result in constitutional deprivations. This Court can intervene" }, { "docid": "2756417", "title": "", "text": "institutional security. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court described the necessary balance between restrictions on individual rights and prison security concerns: [Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. “[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities them selves.” Pell v. Procunier, [417 U.S. 817, 823 [94 S.Ct. 2800, 2804, 41 L.Ed.2d 495] (1974)]; see Jones v. North Carolina Prisoners’ Labor Union, [433 U.S. 119, 129 [97 S.Ct. 2532, 2539, 53 L.Ed.2d 629] (1977) ]; Procunier v. Martinez, 416 U.S. 396, 412 [94 S.Ct. 1800, 1811, 40 L.Ed.2d 224] (1974). Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security. Jones v. North Carolina Prisoners' Labor Union, supra, [433 U.S.] at 129 [97 S.Ct., at 2539]; Pell v. Procunier, supra, at 822, 826; Procunier v. Martinez, supra, [416 U.S.] at 412-414 [94 S.Ct., at 1810-12]. # * * * # # Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Jones v. North Carolina Prisoners’ Labor Union, supra, [433 U.S.] at 128 [97 S.Ct., at 2539]; Procunier v. Martinez, supra, [416 U.S.] at 404-405 [94 S.Ct., at 1807]; Cruz v. Beto, [405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972)]; see Meachum v. Fano, 427 U.S. [215], 228-229 [96 S.Ct. 2532, 2540, 49 L.Ed.2d 451]. “Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the" }, { "docid": "23247570", "title": "", "text": "weight before removing him from solitary confinement “border[ed] on extreme negligence”. TDC officials advanced no penological justification for the deleterious and debasing character of solitary confinement. Several expert witnesses from other correctional systems testified that the hardships imposed by TDC upon inmates in solitary confinement are primitive and unnecessary. The Federal Bureau of Prisons stopped pun ishing inmates in this manner forty or fifty years ago, and the conditions of solitary confinement in other state prison systems are generally much less severe than in TDC. B. The Eighth Amendment prohibits punishments that serve no valid penological purpose and needlessly inflict pain. Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977). Also prohibited are punishments which are grossly disproportionate to the severity of the offense. Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570, 57 L.Ed.2d 522 (1977); Coker v. Georgia, 433 U.S. at 592, 97 S.Ct. at 2866; Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976); Furtado v. Bishop, 604 F.2d 80, 88 (1st Cir. 1979), cert. denied 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980); Wright v. McMann, 460 F.2d 126,130-31 (2d Cir. 1972), cert. denied 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 (1972). Plaintiffs contend that TDC’s use of solitary confinement violates both of these principles. In Novak v. Beto, 453 F.2d 661 (5th Cir. 1971), cert. denied sub nom. Sellars v. Beto, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972), the Fifth Circuit declined to find that the conditions of solitary confinement at TDC, as they existed in 1969, constituted cruel and unusual punishment. The plaintiffs have advanced several arguments in support of the proposition that Novak is no longer controlling, and that the constitutionality of TDC’s solitary confinement conditions should be considered anew. The eighth amendment is not static, but, rather, “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86,101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). It is" }, { "docid": "11794760", "title": "", "text": "of a prison inmate in a cell under conditions described .. . would unquestionably be held unconstitutional . . . . ” Id. at 1263 n.5. Appellants cite Novak v. Beto, 453 F.2d 661, 666 (5th Cir. 1971), reh. denied, 456 F.2d 1304, cert. denied 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972), in support of the proposition that conditions of solitary confinement will not support a finding of cruel and unusual punishment so long as the basic elements of hygiene are provided for. We do not agree that Novak supports such a broad proposition. Novak was a class action in which the entire system of solitary confinement of the Texas Department of Corrections was challenged as unconstitutional. The administration of solitary confinement there included provisions requiring inmates to be furnished “coveralls, a gown or some other form of clothing, i.e., tee shirt and undershorts, tee shirts and regulation trousers” and “the necessary number of blankets to keep them warm.” 453 F.2d at 668. Under those circumstances, the court held, the district court did not err in concluding that solitary confinement as administered by the Texas Department of Corrections was constitutional. Moreover, it is clearly the law in this Circuit that clothing is a “basic necessity of human existence” which cannot be deprived in the same manner as a privilege an inmate may enjoy. Finney v. Arkansas Board of Corrections, 505 F.2d 194, 207-8 (8th Cir. 1974). Any deprivation of basic necessities takes on added importance where it occurs in a condition of solitary confinement. However, the reason for that resides not solely in the requisites of proper hygiene, but in that “the Eighth Amendment’s basic concept ‘is nothing less than the dignity of man.’ ” Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968), citing Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958). The district court’s findings of fact in regard to the Eighth Amendment violation are not clearly erroneous. III. Remedy Appellants present two questions in regard to the district court’s award of damages. First, appellants contend, the" } ]

[ { "docid": "23618406", "title": "", "text": "anticipated opinion with sufficient specificity to allow Drummond to prepare for rebuttal or cross-examination. Under Rule 37(c)(1), the district court was entitled to exclude the testimonies of the experts. A party who “fails to provide information ... as required by Rule 26(a) ... is not allowed to use that information or witness to supply evidence ... at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1); see also Cooper v. Southern Co., 390 F.3d 695, 726 (11th Cir.2004). The plaintiffs argue that the district court should have allowed them to supplement their reports, but we disagree. In May 2004, the district court entered a scheduling order that required the plaintiffs to disclose their expert witnesses by March 15, 2005, and in March 2005, the district court extended the deadline to July 18, 2005. Under Rule 26(a)(2)(c), parties must “make [expert] disclosures at the times and in the sequence that the court orders.” The plaintiffs failed to provide any sufficient disclosures “as required by Rule 26(a),” before the deadline, so they could not offer any expert witnesses at trial. See Fed.R.Civ.P. 37(c)(1). Their decision to make their disclosures on the deadline, July 18, also meant that there might be no opportunity to supplement the disclosures. Rule 26(e)(2) states, “Any additions or changes to [the disclosure report] must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Rule 26(a)(3)(B) provides default deadlines that apply “[ujnless the court orders otherwise.” The district court ordered otherwise; it provided an extended deadline of July 18, at which time disclosure reports and any supplements were due. G. We Need Not Reach the Plaintiffs’ Other Arguments. The plaintiffs also argue that the district court erred when it granted summary judgment against two of their claims without considering the declarations of Garcia and Rubio, but we need not reach this argument because the suit proceeded to trial and neither witness testified. Under Federal Rule of Civil Procedure 61, “[u]nless justice requires otherwise, no error ... by the court ... is ground for granting a new trial, for setting aside" } ]

[ { "docid": "4887206", "title": "", "text": "Pacific’s motion for a continuance, ruling that a lengthy adjournment of the trial for the purpose of allowing Union Pacific to develop a significant and inflammatory issue such as fraud would impermissibly affect the jury’s ability to retain the information already presented. Union Pacific now argues that the district court erred when it refused to allow into evidence the crucial testimony of these two witnesses. According to Union Pacific, the witnesses were called solely for the purpose of calling into question Martinez’s credibility and, as such, the impeachment exception to Local Rule 16.2(c), which allows the omission of impeachment witnesses from the pretrial order, should apply. The trial court traditionally .has broad discretionary power to decide whether to allow the testimony of witnesses not listed prior to trial. Citizens Bank v. Ford Motor Co., 16 F.3d 966, 966 (8th Cir.1994). In determining whether to exclude witnesses not made known in compliance with the pretrial order, the court will consider: “(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court; (4) bad faith or willfulness in failing to comply with the court’s order.” Morfeld v. Kehm, 803 F.2d 1452, 1455 (8th Cir.1986). The district court has considerable leeway in the application of its local rules. This court has upheld strict compliance by trial courts with their local rules, and will “review[ ] the trial court’s ruling only for manifest error amounting to an abuse of discretion.” Id. Our analysis in the present case turns on the appropriate characterization of the witnesses’ testimony. “Impeachment is an attack on the credibility of a witness, whereas rebuttal testimony is offered to explain, repel, counteract, or disprove evidence of the adverse party.” Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th Cir.1992). The primary purpose of the pretrial witness disclosure rule is to give parties notice of" }, { "docid": "9902555", "title": "", "text": "the evidentiary ruling to allow a proper decision at the time the evidence is offered. Even considering, hypothetically, that counsel had requested admission of the excluded deposition testimonies later in the proceedings when other witnesses testified about these doctors, the testimony in question was not sufficient to apprise the district court of the substance and purpose of the excluded testimony and would not have satisfied the second purpose of the rule — to create a clear record for us to review the trial court’s decision. There fore, because the Polyses have not preserved the issue for appeal, we can not review the district court’s decision to exclude the deposition testimonies for abuse of discretion. Consequently, we do not reach the harmless error question. Instead, we examine the record for plain error. We note that it is difficult to find plain error in cases like this because “failure to comply with normal requirements of offers of proof is likely to produce a record which simply does not disclose the [plain] error.” Fed.R.Evid. 103(d) advisory committee’s note. On the facts before us, however, we can not say exclusion of the deposition testimonies was plain error comprising an exceptional case of prejudice or unfairness. First, we find no plain error. We agree with Trans-Colorado that the district court was not automatically required to admit the deposition testimonies under Federal Rule of Civil Procedure 32(a)(3)(B) just because the witnesses were more than 100 miles away as plaintiffs appear to argue. The trial judge appropriately considered surprise to opposing counsel. See Alfonso v. Lund, 783 F.2d at 961; see also In re Air Crash Disaster at Stapleton International Airport, 720 F.Supp. 1493, 1502 (D.Colo.1989) (The trial court refused to admit deposition testimony even though the witness lived outside the 100 mile radius because it decided the jury needed to “consider and evaluate the witness’s credibility.”). Conversely, the Polyses are correct that when applying Federal Rule of Civil Procedure 32, courts no longer distinguish between depositions taken for discovery use or for trial use. See, e.g., United States v. International Business Mach. Corp., 90 F.R.D. 377," }, { "docid": "4447252", "title": "", "text": "case was set for trial on March 10, 1997, approximately three months following the district court’s lift of the stay. 3. Failure to exclude testimony of last-minute witnesses. Massieu’s next point of error is that the district court erred in failing to exclude the trial testimony of Cesar Dominguez and Raul Macias, who were two of the four prospective witnesses that the Government disclosed less than five full days before trial. According to Massieu, the last-minute witness disclosure violated Federal Rule of Civil Procedure 26(a)(3)(A) and should have prompted mandatory exclusion under Rule 37. Specifically, he complains that the late disclosure forced inadequate depositions of other witnesses and precluded investigation of the witnesses’ allegations as well as development of impeachment and rebuttal testimony. Federal Rule of Civil Procedure 37(c)(1) provides that a party who “without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.” Fed.R.Civ.P. 37(c)(1). In determining whether a violation of Rule 26(a) or (e)(1) is harmless, the trial court’s discretion is to be guided by the consideration of four factors: (1) the impor-tance of the witness’s testimony; (2) the prejudice to the opposing party of allowing the witness to testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation, if any, for the party’s failure to identify the witness. See Bradley v. United States, 866 F.2d 120, 125 (5th Cir.1989). We uphold the district court’s decision not to exclude the witness testimony. First, the applicable standard of review for a trial court’s decision in a matter relating to discovery is abuse of discretion. See Harris v. Amoco Production Co., 768 F.2d 669, 684 (5th Cir.1985). We will not substitute our judgment for that of Judge Atlas; instead, we must only decide whether the district court “could have entered the order which [it] did.” See id. Second, neither Rule 37 and the Advisory Committee Notes to Rule 37 nor Fifth" }, { "docid": "22567252", "title": "", "text": "as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial ... any witness or information not so disclosed.” Of importance here, Rule 26(e)(1) requires a party to supplement its experts’ reports and deposition testimony when the party learns of new information. If the party fails to do so, the court may exclude any new opinion offered by the expert. See Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862, 865 (8th Cir.1999). The language of Rule 37(c)(1) provides two exceptions to the general rule excluding evidence that a party seeks to offer but has failed to properly disclose: (1) when the failure to disclose is “substantially] justified],” and (2) when the nondisclosure is “harmless.” Here, in concluding that Byrnes’ undisclosed third opinion should be excluded, the district court applied the following five-factor test for determining whether nondisclosure of evidence is substantially justified or harmless: “ ‘(1) the surprise to the party against whom the witness was to have testified; (2) the ability of the party to cure that surprise; (3) the extent to which allowing the testimony would disrupt the trial; (4) the explanation for the party’s failure to name the witness before trial; and (5) the importance of the testimony.’” Rambus, 145 F.Supp.2d at 726 (quoting Burlington Ins. Co. v. Shipp, 215 F.3d 1317, 2000 WL 620307, at *4 (4th Cir. May 15, 2000) (per curiam) (unpublished table decision)). Southern States argues that the district court erred by excluding Byrnes’ third opinion in the absence of any finding that Southern States acted in bad faith. We find Southern States’ argument unavailing. Rule 37(c)(1) does not require a finding of bad faith or callous disregard of the discovery rules. While Rule 37(c)(1) requires the nondisclosure to be “without substantial justification” and harmful, neither of these requirements suggests that the nondisclosing party must act in bad faith or otherwise culpably. In addition, excluding evidence only when the nondisclosing party acted in bad faith would undermine the basic purpose of Rule 37(c)(1): preventing surprise and prejudice to the opposing party, see" }, { "docid": "22407469", "title": "", "text": "testimony as rebuttal evidence. The district court refused, concluding that the correctness of Whitfield’s ruling Marks was an issue in the first trial and thus was certainly expected to be a point of contention in the second trial. Therefore, by failing to disclose these matters as required under Fed. R.CrimP. 16(b)(1)(C), the district court found that Minor could not elicit that testimony at trial. The district court did not abuse its discretion in excluding George’s testimony. The court was justified in concluding that George’s testimony would not assist the jury and was founded on unreliable methodology. See Daubert, 113 S.Ct. at 2796. As to George’s opinion regarding the correctness of Whitfield’s rulings in Marks, the district court did not abuse its discretion in preventing appellants from raising new matters that were not disclosed in George’s expert report. See Fed. R.CrimP. 16(b)(1)(C). Hopkins intended to testify that Teel had ruled correctly in Peoples Bank. The district court refused to certify Hopkins because his testimony: (1) would not help the jury in resolving the ultimate issue in the case; (2) would violate Fed. R.Evid. 704(b), which prohibits expert witnesses from testifying as to the criminal intent of the defendant; (3) would ask the jury to find contrary to a holding of the Mississippi Supreme Court; and (4) was based on “suspicious” methodology. Appellants’ briefs provide no specific arguments as to why the district court erred in excluding Hopkins’ testimony. Therefore, they have waived this issue on appeal. See Procter & Gamble, 376 F.3d at 499 n. 1. B. Whitfield’s evidentiary claims Whitfield claims that the district court erred in: (1) excluding the billing records of Richard Salloum, counsel for Diamond Offshore in Marks; (2) denying appellants access to an FBI report made after interviewing Radlauer; (3) admitting the transcript from his divorce proceeding; and (4) allowing expert testimony from Government witnesses designated as fact witnesses; (5) admitting a summary witness and summary charts offered by the Government. i. Salloum’s billing records Whitfield argues that the district court violated his rights under the Confrontation Clause of the Sixth Amendment when it excluded Salloum’s" }, { "docid": "13008523", "title": "", "text": "by the district court was clearly limited to the disclosure of the four specific witnesses (none of whom was Mr. Quinn) who provided information that led to the superceding indictment. The government’s failure to disclose Quinn as a witness at an earlier date did not violate the district court’s February 3, 2005, order. Even if the government’s late disclosure violated the district court’s general discovery and pretrial orders, we still conclude that the district court did not abuse its discretion in allowing Quinn to testify. The government had been investigating Quinn’s involvement in the drug conspiracy since December 2004. Although Quinn had been interviewed by the investigators, he did not enter into a cooperation agreement with the government and agree to testify against Sandoval until April 26, 2005, three days before the government identified him as a witness. Given the late date of Quinn’s agreement to cooperate, the prosecution did not act in bad faith, and its reason for the late disclosure was justified. See United States v. Askew, 958 F.2d 806, 813 (8th Cir.1992) (finding no prosecutorial misconduct where government disclosed witness four days before trial, the day the witness pleaded guilty and agreed to cooperate). Nor was Sandoval prejudiced by the late disclosure. The government offered to provide materials about Quinn to Sandoval’s attorney three calendar days prior to the start of the trial. Sandoval’s attorney rejected the materials at that time, choosing instead to move to exclude Quinn’s testimony. Sandoval did not ask for a continuance to allow him adequate time to review the materials, even after the district court denied his motion to exclude Quinn’s testimony. The district court found the one-day time frame sufficient for Sandoval’s attorney to review Quinn’s material and prepare a defense to his testimony. Sandoval’s attorney also cross-examined Quinn at trial. Sandoval does not explain how he was prejudiced other than the lateness of the disclosure itself. In these circumstances, Sandoval has failed to establish that he was prejudiced by the government’s late disclosure of Quinn as a witness. See United States v. Washington, 318 F.3d 845, 857-58 (8th Cir.2003) (finding" }, { "docid": "2426059", "title": "", "text": "entitled to relief because admission of the evidence did not have a significant influence on the verdict. See Oman, 427 F.3d at 1076 (holding that any error in admission of 404(b) evidence was harmless in light of the strong evidence of the defendant’s guilt). Multiple surveillance videos established that Knutson bore a physical resemblance to the taller perpetrator in the First Bank robbery. Knutson was a known associate of Stenger and Robinson during the time when the crime occurred, and he conceded at trial that those individuals were involved in the First Bank robbery and other related crimes. Knutson also possessed a black powder pistol, motorcycle boots, and a pickup truck consistent with those of the perpetrator. Furthermore, three cooperating witnesses testified about Knutson’s involvement in the crime. Accordingly, any error in admission of the evidence was harmless. III. We next consider Stenger’s arguments that the district court abused its discretion in admitting evidence from two of the government’s cooperating witnesses, Gary Wessel and Antonio Sheley. A. Gary Wessel’s Testimony Stenger first argues that the district court abused its discretion by allowing Gary Wessel to testify about inculpatory statements that Stenger made while he was in jail awaiting trial. Stenger contends that Wessel’s testimony should have been excluded because the government did not inform Stenger that it intended to call Wessel as a witness until the afternoon of the last business day before trial. In reviewing the district court’s refusal to exclude testimony on the basis of late disclosure, “we consider (1) whether the Government acted in bad faith and the reason(s) for delay; (2) whether there is any prejudice to the defendant; and (3) whether any lesser sanction is appropriate to secure future Government compliance.” See United States v. Lofton, 557 F.3d 594, 597 (8th Cir.2009) (internal quotation and alteration omitted). We find Stenger’s argument unpersuasive. “A federal criminal defendant generally has no right to know about government witnesses prior to trial.” United States v. Altman, 507 F.3d 678, 680 (8th Cir.2007) (citing 18 U.S.C. § 3500; Fed. R.Crim.P. 16(a)(2)). Stenger’s contrary argument relies on United States v. Davis," }, { "docid": "11783449", "title": "", "text": "that, to apply the doctrine of res ipsa loquitur, the plaintiff must prove that “the incident resulting in injury is of the kind which ordinarily does not occur without someone’s negligence”). Consequently, causation cannot be presumed and Smith was required to provide expert medical testimony sufficient to establish that Tenet and SLU caused Smith’s amputation. G. Expert Witness Testimony Based on Previously Undisclosed Information Smith argues that the district court abused its discretion in allowing two of the defendants’ experts, Dr. Donald Brancato and Dr. Charles Mannis, to base their testimony on information they did not disclose in their pretrial reports. See Fed.R.Civ.P. 26(a)(2)(B), (e). We review the district court’s rulings regarding expert witnesses’ duty to disclose facts on which they base their testimony for an abuse of discretion. Phil Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir.1979). Smith complains that Dr. Branca-to relied on x-rays that he did not disclose in his pretrial report to support his conclusion at trial that Smith should have had his leg amputated many years prior to the surgical complications in 2001. We do not need to decide whether the district court abused its discretion in allowing this testimony because any error would be harmless. Rule 26(a)(2) “imposes an additional duty to disclose information regarding expert testimony sufficiently in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.” Fed.R.Civ.P. 26, advisory committee notes (1993 Amendments). While Dr. Brancato did not include his reliance on x-rays in his pretrial disclosure, he did discuss these x-rays during his deposition. Therefore, Smith was on notice that Dr. Brancato might rely on these x-rays during his trial testimony. A harmless violation of Rule 26 does not mandate exclusion of the evidence. See Fed.R.Civ.P. 37(c)(1). Smith also complains that Dr. Mannis reviewed additional information after he submitted his pretrial report and gave his deposition. However, Smith does not allege that Dr. Mannis based his trial testimony on this new information. Accordingly, any error would be harmless and does not" }, { "docid": "13008524", "title": "", "text": "(finding no prosecutorial misconduct where government disclosed witness four days before trial, the day the witness pleaded guilty and agreed to cooperate). Nor was Sandoval prejudiced by the late disclosure. The government offered to provide materials about Quinn to Sandoval’s attorney three calendar days prior to the start of the trial. Sandoval’s attorney rejected the materials at that time, choosing instead to move to exclude Quinn’s testimony. Sandoval did not ask for a continuance to allow him adequate time to review the materials, even after the district court denied his motion to exclude Quinn’s testimony. The district court found the one-day time frame sufficient for Sandoval’s attorney to review Quinn’s material and prepare a defense to his testimony. Sandoval’s attorney also cross-examined Quinn at trial. Sandoval does not explain how he was prejudiced other than the lateness of the disclosure itself. In these circumstances, Sandoval has failed to establish that he was prejudiced by the government’s late disclosure of Quinn as a witness. See United States v. Washington, 318 F.3d 845, 857-58 (8th Cir.2003) (finding no abuse of discretion in district court’s decision to allow government witness to testify who was disclosed two days prior to her testimony where the government provided related information to the defense and the defense was allowed to interview and cross-examine the witness), cert. denied, 540 U.S. 884 & 899, 124 S.Ct. 209, 157 L.Ed.2d 152 (2003); United States v. DeCoteau, 186 F.3d 1008, 1010-11 (8th Cir.1999) (reversing the district court’s order striking the government’s witnesses for a discovery deadline violation and noting that the defendant’s failure to request a continuance supported a finding that the defendant was not prejudiced). “As a general rule, a defendant in a noncapital case has no right to require disclosure of government witnesses.” De-Coteau, 186 F.3d at 1009 n. 2; see also Fed.R.Crim.P. 16(a)(2) (“Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500 [Jencks Act].”). That being said, due process and notions of fair play require the government to disclose all evidence that is" }, { "docid": "16838265", "title": "", "text": "telephone number of each individual likely to have discoverable information.” Fed.R.Civ.P. 26(a)(1)(A) (emphasis added). Compliance with Rule 26’s disclosure requirements is “mandatory.” Republic of Ecuador v. Mackay, 742 F.3d 860, 865 (9th Cir.2014). The rule places the disclosure obligation on a “party.” That another witness has made a passing reference in a deposition to a person with knowledge or responsibilities who could conceivably be a witness does not satisfy a party’s disclosure obligations. An adverse party should not have to guess which undisclosed witnesses may be called to testify. We — and the Advisory Committee on the Federal Rules of Civil Procedure — have warned litigants not to “ ‘indulge in gamesmanship with respect to the disclosure obligations’ ” of Rule 26. Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936 n. 3 (9th Cir.1994) (quoting Fed.R.Civ.P. 26 advisory committee’s note (1993 amend.)). The record shows that the district court did not abuse its discretion when it concluded that Sweetwater’s attempt to obfuscate the meaning of Rule 26(a) was just this sort of gamesmanship. There was no error in the district court’s conclusion that “the mere mention of a name in a deposition is insufficient to give notice to” Plaintiffs that Sweetwater “intended] to present that person at trial.” The district court did not abuse its discretion when it concluded that Sweet-water’s failure to comply with Rule 26’s disclosure requirement was neither substantially justified nor harmless. See Fed.R.Civ.P. 37(c)(1). Sweetwater does not argue that its untimely disclosure of these 30 witnesses was substantially justified. Nor was it harmless. Had Sweetwater’s witnesses been allowed to testify at trial, Plaintiffs would have had to depose them — or at least to consider which witnesses were worth deposing' — • and to prepare to question them at trial. See Yeti by Molly, 259 F.3d at 1107. The record demonstrates that the district court’s conclusion, that reopening discovery before trial would have burdened Plaintiffs and disrupted the court’s and the parties’ schedules, was well within its discretion. The last thing a party or its counsel wants in a hotly contested lawsuit is to make" }, { "docid": "17212137", "title": "", "text": "as expert opinion testimony that was not disclosed in Causey’s pretrial Federal Rule of Criminal Procedure 16 notice. Testimony that is based on “scientific, technical, or other specialized knowledge” is expert testimony, Fed.R.Evid. 702, a written summary of which must be disclosed pretrial in a criminal case when certain conditions are met. Fed.R.Crim.P. 16(b) (defendant must provide expert summaries when government first discloses its summaries and requests defendant’s). Causey admits he did not disclose Kvachkoff s testimony before trial, but argues he did not need to because it was not expert testimony. Causey is correct that Kvachkoff began as an occurrence witness when he testified as to the contents of a folder sitting on his lap. But once Kvachoff said he had “no recollection of this closing” referred to on the folder and defense counsel began asking about industry practice for procuring closing numbers, the testimony crossed into expert testimony. See Fed.R.Evid. 702; United States v. Pansier, 576 F.3d 726, 737-38 (7th Cir.2009) (finding testimony about the characteristics of forged banking forms to be expert testimony). These questions required testimony based on “specialized knowledge” of the industry and therefore necessitated expert opinion. Because Causey admittedly did not file the required Rule 16 disclosure, the district court was within its discretion to exclude the expert testimony. See Fed.R.Crim.P. 16(d)(2)(C) (noting that if a party fails to comply with Rule 16’s disclosure requirements, the court may “prohibit that party from introducing the undisclosed evidence”); United States v. Hoffecker, 530 F.3d 137, 185 (3d Cir.2008) (“Courts of appeals have upheld the exclusion of experts [under Fed.R.Crim.P. 16] when defendants fail to serve timely notice of their intent to call them as witnesses.”). 4. Admission of Chandler’s Expert Testimony Was Harmless Error Next Causey argues the district court erred in allowing Chandler to testify as an expert. He specifically challenges her statement that the Gary housing market was inflated by 400%, and he contends that the court erred in letting her testify in a dual expert/lay testimony capacity without a limiting instruction. The parties dispute the proper standard of review. Causey claims we should" }, { "docid": "22567251", "title": "", "text": "counsel until defense counsel conducted voir dire of ... Byrnes on the third day of trial, should have been excluded.” J.A. 1592. Thus, the district court denied Southern States’ motion for a new trial. II. We review the imposition of discovery sanctions for abuse of discretion. See Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 513 n. 10 (4th Cir.2002); see also Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001) (“[W]e give particularly wide latitude to the district court’s discretion to issue sanctions under Rule 37(c)(1).”). As explained below, we conclude that the district court did not abuse its discretion in excluding Byrnes’ third opinion due to Southern States’ failure to timely disclose it. However, because of a dispute regarding the proper standards for excluding evidence under Rule 37(c)(1), we will first address this issue. A. 1. In relevant part, Rule 37(c)(1) provides that “[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial ... any witness or information not so disclosed.” Of importance here, Rule 26(e)(1) requires a party to supplement its experts’ reports and deposition testimony when the party learns of new information. If the party fails to do so, the court may exclude any new opinion offered by the expert. See Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862, 865 (8th Cir.1999). The language of Rule 37(c)(1) provides two exceptions to the general rule excluding evidence that a party seeks to offer but has failed to properly disclose: (1) when the failure to disclose is “substantially] justified],” and (2) when the nondisclosure is “harmless.” Here, in concluding that Byrnes’ undisclosed third opinion should be excluded, the district court applied the following five-factor test for determining whether nondisclosure of evidence is substantially justified or harmless: “ ‘(1) the surprise to the party against whom the witness was to have testified; (2) the ability of the" }, { "docid": "13484899", "title": "", "text": "and any such decision will be overturned only if it results in a clear abuse of discretion. Boardman v. Nat’l Med. Enters., 106 F.3d 840, 843 (8th Cir.1997). Even if Feldman should have been precluded from offering expert opinion testimony, such preclusion would not affect his ability to testify as a fact witness. See Easley v. Anheuser-Busch, Inc., 758 F.2d 251, 258 (8th Cir.1985) (holding that the district court erred in preventing in-house experts from testifying as fact witnesses, though properly excluded as expert witnesses for failing to comply with discovery, despite difficulty in separating fact and opinion testimony). The district court denied the Longs’ pretrial motion to bar Feldman from testifying, ruling that he would be allowed to testify as a fact witness and any issues regarding opinion testimony were best left for trial. However, the Longs never objected during Feldman’s testimony on the basis that he gave improper opinion testimony. To the extent the Longs have preserved this issue, see McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1406-07 (8th Cir.1994) (limiting review to plain error where party did not object to expert’s testimony), we reject the argument. Compare Jackson v. City of St. Louis, 220 F.3d 894, 897 (8th Cir.2000) (refusing to consider an argument that a fact witness was erroneously allowed to testify as an undisclosed expert where the defendant did not object during the witness’s testimony). Even if Feldman has testified in numerous other products liability cases for Cott-rell, Rule 26(a)(2)(B) was not triggered because the testimony he gave in this case was not expert in nature. See Fed. R.Civ.P. 26(a)(2)(B) (requiring expert disclosure for a witness “whose duties as an employee of the party regularly involve giving expert testimony” (emphasis added)). Feldman testified based on his firsthand experience from working in the industry and his involvement in Cottrell’s design and testing processes. Cottrell did file a Supplemental Rule 26 Disclosure Statement after the expert discovery deadline, listing Feldman as a potential expert witness and offering his opinion that the ratchet was not unreasonably dangerous when put to its intended use and that Long improperly" }, { "docid": "16838266", "title": "", "text": "was no error in the district court’s conclusion that “the mere mention of a name in a deposition is insufficient to give notice to” Plaintiffs that Sweetwater “intended] to present that person at trial.” The district court did not abuse its discretion when it concluded that Sweet-water’s failure to comply with Rule 26’s disclosure requirement was neither substantially justified nor harmless. See Fed.R.Civ.P. 37(c)(1). Sweetwater does not argue that its untimely disclosure of these 30 witnesses was substantially justified. Nor was it harmless. Had Sweetwater’s witnesses been allowed to testify at trial, Plaintiffs would have had to depose them — or at least to consider which witnesses were worth deposing' — • and to prepare to question them at trial. See Yeti by Molly, 259 F.3d at 1107. The record demonstrates that the district court’s conclusion, that reopening discovery before trial would have burdened Plaintiffs and disrupted the court’s and the parties’ schedules, was well within its discretion. The last thing a party or its counsel wants in a hotly contested lawsuit is to make last-minute preparations and decisions on the run. The late disclosures here were not harmless. See Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir.2008). Nor did the district court abuse its discretion by finding that the untimely disclosure of the eight remaining witnesses also was not harmless. Allowing these witnesses to testify and reopening discovery would have had the same costly and disruptive effects. Nor was it substantially justified merely because the eight witnesses were not employed at Castle Park until after the discovery cutoff date. Sanctioning this argument would force us to read the supplementation requirement out of Rule 26(e). We will not do that. Sweetwater did not comply with the disclosure requirements of Rule 26(a) and (e). That failure was neither substantially justified nor harmless. The district court did not abuse its discretion when it excluded Sweetwater’s 38 untimely disclosed witnesses from testifying at trial. C The next issue concerns whether the district court abused its discretion by declining to consider contemporaneous evidence at trial. On April 26, 2010, the" }, { "docid": "16650804", "title": "", "text": "doubt that Mendoza’s call caused Flight 24 to be endangered while in flight, the district court did not err in denying Mendoza’s Rule 29(c) motion. II. Expert Testimony Mendoza next contends that the district court abused its discretion by admitting the opinion of first officer Park that Flight 24 was endangered. He argues that Park was an undisclosed expert witness and that Park’s testimony surprised him and denied him a fair trial. The Federal Rules of Criminal Procedure provide that, upon the defendant’s request, the government must disclose a written summary of expert testimony that the government intends to offer at trial. Fed. R.Crim.P. 16(a)(1)(E). If the government fails to comply with this rule, the district court may order disclosure, grant a continuance, prohibit the government from offering the evidence at trial, or grant whatever relief the district court deems just under the circumstances. Fed.R.Crim.P. 16(d)(2). A district court’s evidentiary rulings during trial are reviewed for an abuse of discretion. See United States v. Hankey, 203 F.3d 1160, 1166 (9th Cir.2000). Mendoza’s counsel was not informed that Park would testify until the morning of trial. Defense counsel had previously been informed by the government that the captain of the flight, not Park, would testify. When counsel learned from the government’s opening statement that Park would testify about his beliefs regarding the danger of the increased risks to the aircraft, counsel immediately moved to exclude Park’s proposed testimony. Counsel argued that Park’s testimony would be that of an undisclosed expert and that, had she been on notice, she may have acquired a rebuttal witness to meet the opinion of Park. The court disagreed, characterizing the proposed testimony as the opinion of a percipient lay witness. Over a subsequent objection by Mendoza’s counsel during the direct examination of Park, the court allowed Park to testify that Flight 24 was endangered. Even if we should assume that the district court erred by admitting Park’s opinion that Flight 24 was endangered because it was an “expert” rather than a “lay” opinion, on this record any error was harmless. Although the diátrict court did not" }, { "docid": "20894300", "title": "", "text": "harmless. In cases where evidence of the defendant’s participation in the crime is overwhelming, we have found that the erroneous admission of a stale conviction is harmless error. See Sloman, 909 F.2d at 181. Collins must show “substantial prejudice to be entitled to a reversal.” Id. There was overwhelming evidence in this case of Collins’ involvement in the conspiracy. Moreover, the potential prejudice of admitting this evidence is limited for the same reason that its probative value is limited — it had been 15 years since his conviction and he had had no subsequent similar convictions. In sum, while Collins’ prior conviction may have been inadmissible under a Rule 609(b) analysis, in light of the overwhelming testimony against Collins and the limited prejudicial impact of the conviction, the district court’s error in applying a Rule 403 analysis and admitting the conviction into evidence was harmless. B. Expert Witness Disclosures We review a district court’s admission or exclusion of evidence for abuse of discretion. United States v. Ganier, 468 F.3d 920, 925 (6th Cir.2006). Defendants argue that the district court abused its discretion by allowing the government’s proposed expert witnesses to testify despite the government’s deficient expert witness disclosures. We disagree. Pursuant to Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure, the government must, at a defendant’s request, “give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial.” The summary required by this rule “must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Id. Where the government has failed to comply with this disclosure requirement, the district court may: (A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances. Fed.R.Crim.P. 16(d)(2). We have previously identified three factors for a reviewing court to" }, { "docid": "1835794", "title": "", "text": "ruled that the witnesses should not be allowed to testify, but the district judge allowed their testimony to be taken on a bill of exceptions before a magistrate. The court held that PEMEX breached its contract with AITC, and the court awarded AITC $7,770,000 in damages. The court, however, denied AITC’s request for prejudgment interest. This appeal followed. II. ISSUES ON APPEAL PEMEX argues that the trial court should have permitted Casanova and Inclan to testify and that the trial court erred in finding that Roberto Chavez did not serve as AITC’s agent at the October meeting. PEMEX also argues for the first time that the trial court should have applied Mexican law, rather than Texas law. AITC argues that this appeal warrants sanctions as frivolous, and AITC cross-appeals the trial court’s denial of prejudgment interest. A. The Exclusion of Undisclosed Witnesses The defendant, PEMEX, argues that the court’s refusal to allow two witnesses to testify at trial because their names were not listed on the joint pretrial order was an act of manifest injustice, which contradicted Federal Rule of Civil Procedure 16(e) and this Court’s holding in Central Distributors, Inv. v. M.E.T., Inc. PEMEX contends that the two witnesses’ exclusion “effectively bar[red] a meaningful examination of the only real issues present” in this case, that is, the purposes of the parties’ October 1981 meeting. PE-MEX also argues that its failure to list the witnesses’ names on the pretrial order was harmless and the result of “political considerations between PEMEX and the Oil Workers Union of Mexico”. “Questions concerning both the interpretation of pretrial orders and the exclusion of undisclosed witnesses are reviewable only for abuse of discretion.” Because we find no abuse of discretion, we reject the defendant’s argument. As in Keyes v. Lauga the defendants “[f]rom the outset of this action” knew the plaintiff’s contentions and “[t]he necessity for [In-clan’s] and [Casanova’s] rebuttal testimony could reasonably have been anticipated”. The “political considerations” between PE-MEX and the witnesses’ union are unpersuasive reasons for not listing Inclan and Casanova as potential witnesses. PEMEX instructed its attorney not to list Inclan" }, { "docid": "12680677", "title": "", "text": "of specialized training in DNA profiling. A district court’s acceptance of an expert’s qualifications will be disturbed only for a clear abuse of discretion. Beachum v. Tansy, 903 F.2d 1321, 1331 (10th Cir.), cert. denied, 498 U.S. 904, 111 S.Ct. 269, 112 L.Ed.2d 225 (1990). Mr. Reed, on the other hand, has offered no reason why Agent Lynch is unqualified to testify regarding genetics. We therefore find no abuse of discretion. Finally, Mr. Davis argues that Agent Lynch relied upon hearsay in her testimony because she utilized the notes of technicians in her analysis. However, Agent Lynch testified that it was accepted in her field to rely upon the notes of lab technicians and Mr. Davis offers no evidence to the contrary. It is also firmly established that an expert may testify from another person’s notes. 1 McCormick on Evidence § 15, at 62-67 (4th ed. 1992); see also Fed.R.Evid. 703. In conclusion, we believe that the defendants’ objections to the DNA profiling evidence used in this case are not persuasive. The district court clearly complied with Dau-bert ’s second prong by hearing lengthy testimony about protocol before the expert gave her opinion. Finally, the court determined that the evidence was not unfairly prejudicial under Fed.R.Evid. 4Ó3. Exclusion of Undisclosed Alibi Witness Mr. Reed argues that the trial court abused its discretion by excluding an alibi witness. Mr. Reed attempted to elicit testimony from a previously undisclosed alibi witness on the first day of trial. The government objected, arguing that Mr. Reed failed to respond in writing when the government issued a Demand of Notice of Alibi under Fed.R.Crim.P. 12.1, and that Mr. Reed’s attorney responded orally to the government that there would be no alibi defense. Defense counsel argued that the witness should have been allowed to testify because he did not know the witness’s name until one week before the trial and could not locate the witness until the morning of the trial. Consequently, counsel argued that he did not believe disclosure was required. Rec. vol. V, at 67-70. The district court exercised its discretion under Fed.R.Crim.P. 12.1(d)," }, { "docid": "4887205", "title": "", "text": "During questioning, however, Martinez denied making more definitive statements about orchestrating his own accident. Objection was made when it became clear that Union Pacific planned to call two witnesses who would challenge the credibility of Martinez’s version of how the accident occurred because those witnesses were not disclosed on the pretrial order. Based on Nebraska Local Rule 16.2, the express language of the pretrial order required that, “except upon a showing of good cause, no witness whose name and address does not appear [in the pretrial order] shall be permitted to testify over objection for any purpose except impeachment.” Accordingly, the district court sustained the objection, concluding that it was improper to call Martinez as a witness and set him up for impeachment, in order to call two witnesses whose names had not been disclosed in the pretrial conference order. Following Union Pacific’s offer of proof, the court instructed the jury to disregard Martinez’s testimony relating to any prior statements that he may have made to other employees of the Railroad. The court denied Union Pacific’s motion for a continuance, ruling that a lengthy adjournment of the trial for the purpose of allowing Union Pacific to develop a significant and inflammatory issue such as fraud would impermissibly affect the jury’s ability to retain the information already presented. Union Pacific now argues that the district court erred when it refused to allow into evidence the crucial testimony of these two witnesses. According to Union Pacific, the witnesses were called solely for the purpose of calling into question Martinez’s credibility and, as such, the impeachment exception to Local Rule 16.2(c), which allows the omission of impeachment witnesses from the pretrial order, should apply. The trial court traditionally .has broad discretionary power to decide whether to allow the testimony of witnesses not listed prior to trial. Citizens Bank v. Ford Motor Co., 16 F.3d 966, 966 (8th Cir.1994). In determining whether to exclude witnesses not made known in compliance with the pretrial order, the court will consider: “(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would" }, { "docid": "6025086", "title": "", "text": "Owens’ discussion of netting in Section C, and finds that the report does not qualify as a supplemental report under Rule 26(e) because it does not correct inaccuracies or add information that was unavailable to Owens at the time of the initial report. Rather, the Owens Surrebuttal and Second Supplemental Report reads more like a rebuttal report offered solely to contradict or rebut expert testimony offered by Sancom. See Fed.R.Civ.P. 26(a)(2)(C)(ii). But as the court previously noted, Qwest disclosed the Owens Surrebuttal and Second Supplemental Report two months after the deadline for rebuttal reports. Because the Owens Surrebuttal and Second Supplemental Report does not qualify as a supplemental report under Rule 26(e), it is untimely. Untimely disclosure of an expert opinion triggers Rule 37(c)(1) sanctions, including the exclusion at trial of testimony on undisclosed opinions, unless “the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The court should consider four factors in determining whether exclusion is the proper sanction for untimely expert testimony: (1) the importance of the excluded expert testimony; (2) the party’s explanation for failure to disclose; (3) the potential prejudice created by permitting use of the expert testimony at trial or on a pending motion; and (4) the ability to cure any prejudice by granting a continuance. See Transclean Corp. v. Bridgewood Servs., Inc., 101 F.Supp.2d 788, 795 (D.Minn.2000); see also Citizens Bank of Batesville, Ark. v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir.1994) (using four factors to determine whether the trial court can exclude witnesses not disclosed in compliance with the pretrial order). The trial court has great discretion in determining whether to strike expert testimony that is disclosed in contravention of the court’s scheduling orders. See Syllar-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir.1995). Considering the first factor, the court finds that Owens’ proposed testimony in his surrebuttal and second supplemental report is not particularly important because most of Owens’ responses to Calab ro’s arguments can be brought out by counsel for Qwest on cross-examination of Calabro. For example, Owens’ argument that Calabro’s discussion of the term “traffic" } ]

[ { "docid": "22278045", "title": "", "text": "federal court’s power to act. Generally, unlike personal jurisdiction, the parties cannot waive lack of subject matter jurisdiction by consent, by conduct, or by estoppel. We also recognize that lack of subject matter jurisdiction may be raised for the first time on appeal. We do not preclude appellants from raising a claim of lack of subject matter jurisdiction. Indeed, we have no power to do so. Rather, we hold that in light of the record before us, Update has stated a claim fully cognizable under the copyright laws. It is well established that copyright laws generally do not have extraterritorial application. There is an exception — when the type of infringement permits further reproduction abroad — such as the unauthorized manufacture of copyrighted material in the United States. Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1443 (9 Cir.1986); Robert Stigwood Group Ltd. v. O’Reilly, 530 F.2d 1096, 1100-01 (2 Cir.), cert. denied, 429 U.S. 848 (1976). Appellants concede the magistrate’s jurisdiction over the newspapers distributed in the United States. As the applicability of American copyright laws over the Israeli newspapers depends on the occurrence of a predicate act in the United States, the geographic location of the illegal reproduction is crucial. If the illegal reproduction of the poster occurred in the United States and then was exported to Israel, the magistrate properly could include damages accruing from the Israeli newspapers. If, as appellants assert, this predicate act occurred in Israel, American copyright laws would have no application to the Israeli newspapers. Since a large portion of the damage award accrued from the Israeli newspapers, our determination on this issue affects substantially the final judgment. Update’s complaint asserts that the acts complained of occurred in whole or in part in the United States. Update asserts that nowhere in the record do appellants definitively assert that the reproduction of the poster occurred in Israel. Appellants deny this assertion, relying on their response to one of Update’s interrogatories. In their response, appellants stated that an editor of the magazine section observed the poster “on an office wall”; he" } ]

[ { "docid": "8367214", "title": "", "text": "acts of infringement undertaken in the United Kingdom or beyond. Rather, even when crediting Armstrong’s claims of infringement, it would seem that our unfolding story of infringement begins abroad, with the composition, distribution, and licensing of “Blue Lines” in Great Britain. Insofar as subject matter jurisdiction is concerned, however, United States copyright law cannot be applied to wholly foreign acts of infringement merely because foreign infringement will have adverse effects within the United States. See Subafilms, 24 F.3d at 1095. Consequently, to the extent that Armstrong seeks to recover for alleged acts of infringement solely committed abroad, such as the distribution and sale of “Blue Lines” albums in the United Kingdom, he could not obtain such recovery under our copyright laws. This is not the end of the story, however. A defendant in an infringement action may be held liable for acts of infringement if that defendant is either contribu-torily or vicariously liable for another’s direct act of infringement. Where those acts of infringement occur within the United States and a plaintiff seeks to hold a foreign defendant contributorily or vicariously liable for those acts, it has been held that subject matter jurisdiction may exist, and that the exercise thereof does not conflict with the doctrine of nonextraterri-toriality. See Blue Ribbon Pet Prods., Inc. v. Rolf C. Hagen (USA) Corp., 66 F.Supp.2d 454, 461-68 (E.D.N.Y.1999); Stewart v. Adidas A.G., No. 96 Civ. 6670(DLC), 1997 WL 218431, at *3 (S.D.N.Y. Apr.30, 1997); GB Marketing USA Inc. v. Gerolsteiner Brunnen GmbH & Co., 782 F.Supp. 763, 773 (W.D.N.Y.1991); c.f. Metzke, 878 F.Supp. at 760 (holding, despite defendant’s claim that it could not be held hable for infringing acts of third-parties, that defendant could be held liable for foreign third party’s infringement “if it knew or should have known that [third party] Maru Fung’s copies of Ms. Metzke’s designs would be distributed by non-May retailers in the United States.”). As the Honorable Lawrence K. Karlton held in ITSI T.V. Productions, “to satisfy the jurisdictional requirement that the defendant commit an act of infringement in the United States, the plaintiff must show only that" }, { "docid": "19008478", "title": "", "text": "a twenty-five percent interest in the copyright in certain songs, such as Change Gone Come, or fifty percent of T-Funk’s fifty percent share in the recording. The agreement provided that Songs of Universal obtained “without limitation, universe-wide exclusive administration rights” over Hutton’s works, including the right to license the use of included compositions. The other writers own the remainder of the copyright in Change Gone Come. In May 1999, Soul Town released the album “Well Connected” that contained a recording of Change Gone Come. In October 2000, D-3 Albums released the album “Dead Man Walkin’’ that contained a recording of Change Gone Come. Universal never manufactured, distributed, or sold either the albums ‘Well Connected” and “Dead Man Walkin’’ or any recording containing Change Gone Come. Universal issued no licenses in connection with Change Gone Come. Specifically, it issued no licenses authorizing the use of Change Gone Come in connection with either the album “Well Connected” or the album “Dead Man Walkin.” Universal does not control the public performance of Change Gone Come and has never performed it. Universal received royalties in connection with Change Gone Come. It received $.86 from Touchtunes Music Corporation in mechanical royalties, approximately $600 in foreign royalties, and $ .38 from BMI in performance royalties. Bridgeport, however, has not received any royalties or income from the alleged interpolation of Pumpin’ It Up in Change Gone Come. Moreover, no license exists for the use of Pumpin’ It Up in Change Gone Come. On November 28, 2000, Bridgeport discovered the alleged infringement. In May 2001, Bridgeport filed this lawsuit. On September 28, 2001, Bridgeport filed a first amended complaint in which it alleged claims for copyright infringement, a declaratory judgment, a permanent injunction, and an accounting. The first amended complaint alleges: Rap artists Calvin Broadus a/k/a Snoop Dogg and Michael Hutchence performed the Infringing Composition and Sound Recording “Change Gone Come” on the “Dead Man Walkin” and “Well Connected” records. “Change Gone Come” contains sampled and/or interpolated portions of the Bridgeport and/or Southfield-owned musical composition and the Westbound and/or Nine-owned sound recording “Pumpin’ It Up,” which were included" }, { "docid": "19008487", "title": "", "text": "is implicated here, not its holding that Bridgeport failed to establish an infringing act within the limitations period on which it could base the defendant’s contributory infringement or vicarious liability. In addition to its argument that the evidence permits an inference that Universal granted a license, Bridgeport asserts that Universal is liable for its role in the chain of distribution as the originator of the infringing composition. In a seemingly related argument, it contends that wrongful conduct is infringement even if the infringer derives no monetary profit from the conduct. Both arguments skirt the requirement that Bridgeport present evidence of conduct by Universal connecting it to the allegedly infringing act. See id. at 622-23. No such evidence exists here. ii. In its briefing regarding royalties received by Universal, Bridgeport apparent ly goes beyond a mere assertion that the royalties permit the inference that Universal granted a license with respect to inclusion of Change Gone Come on the albums and argues that they are more general evidence of infringement. The royalties in question are $.86 from Touchtunes Music Corporation in mechanical royalties, approximately $600 in foreign royalties, and $ .38 from BMI in performance royalties in connection with Change Gone Come. As previously noted, there is no evidence in the record suggesting that any of these royalties derive from the inclusion of Change Gone Come in the albums. Bridgeport’s first amended complaint alleges liability on the part of Universal based only on the inclusion of Change Gone Come in “Well Connected” and “Dead Man Walkin.” To the extent Bridgeport seeks to expand its claims to assert new theories, it may not do so in response to summary judgment or on appeal. See e.g., Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir.2006) (“Allowing [plaintiff] to present a new theory of her case on appeal that was not alleged below would permit her two bites at the apple, a practice that would be very disruptive of orderly trial procedure.”); Tucker v. Union of Needletrades, Indus. and Textile Employees, 407 F.3d 784, 788 (6th Cir.2005) (holding that a plaintiff may" }, { "docid": "5098302", "title": "", "text": "— such as the unauthorized manufacture of copyright material in the United States.”); In re Outsidewall Tire Litig., No. 09-cv-1217, 2010 WL 2929626, at *7-8 (E.D.Va. July 21, 2010) (“[Extraterritorial exploitation of a copyright originally infringed inside the United States falls within the jurisdiction of the Copyright Act.”); Compaq Computer Corp. v. Ergonome Inc., No. H-97-1026, 2001 WL 34104826, at *4-5, 2001 U.S. Dist. LEXIS 23485, at *15-16 (S.D.Tex. June 27, 2001) (“[E]xception to the presumption against extraterritoriality” applied when “Compaq allegedly completed the initial, primary infringement within the borders of the United States.... As a result, foreign translations of that initial work are subject to this Court’s jurisdiction, no matter where those translations may have been eventually made.”); P & D Int’l v. Halsey Publ’n Co., 672 F.Supp. 1429, 1432-33 (S.D.Fla.1987) (where defendant copied copyrighted film in Florida and then showed the film on a cruise ship in international waters, court had subject matter jurisdiction “to the extent that part of an ‘act’ of infringement occurs within this country, although such act be completed in a foreign jurisdiction, those who contributed to the act within the United States may be liable under U.S. copyright law.”). Under this extraterritoriality exception, “liability is not based on contributory infringement, but on the theory that the infringing use would have been actionable even if the subsequent foreign distribution that stemmed from that use never took place.” Subafilms, 24 F.3d at 1094; see generally Graeme W. Austin, Domestic Laws and Foreign Rights: Choice of Law in Transnational Copyright Infringement Litigation, 23 Colum.-VLA J.L. & Arts 1 (1999) (stating that predicate act liability allows “[c]opyright owners who are able to establish that an infringing copy was made within U.S. borders which then facilitated further infringements abroad ... to secure damage awards that include the profits made by unauthorized foreign exploitation.”). The plaintiff provides two bases for her claim that the infringing displays of the Protected Photographs in foreign Va-piano restaurants fall under the predicate act exception and are therefore actionable under the Copyright Act. First, the plaintiff claims that Vapiano SE solicits franchisees by “enticing" }, { "docid": "1654143", "title": "", "text": "the required statutory copyright notice prior to obtaining the copyright; Ruskin is not entitled to institute an infringement action as an assignee because the instrument of assignment has not been recorded in the United States Copyright Office as required by 17 U.S.C. § 205(d); the conditioned assignment contains no transfer of copyright to pursue a claim against Owen Advertising for infringement, but only against Sunrise Management; and the defendants incur no liability for actual or statutory damages under 17 U.S.C. § 504 because any infringement, if it occurred, was an innocent infringement and excepted by 17 U.S.C. § 405(b). Having given careful consideration to each of these grounds, I find that summary judgment is inappropriate. COPYRIGHT NOTICE During the period of at least May 1, 1978 to August 31, 1978, Owen Advertising represented Sunrise Management in a commercial advertising capacity. The affidavit of Glen Owen, president of Owen Advertising, states that the advertising agency receives as a matter of course record albums from local radio stations without cost to the agency for promotional and other purposes and retains the record albums in a library. He averred that the agency so received Ruskin’s record album on the Tacoma label, Serial Number C-1039, containing the song “Here Comes The Sun.” He further aver red that neither the record album itself nor the jacket contained a notice of copyright. Photographs of the record album was by all accounts published on or about January 15, 1974. Defendants acknowledge that the album copies submitted to the Copyright Office on June 28, 1979, for purposes of obtaining Registration SR 11-534, contained the necessary notice. Nonetheless, defendants assert that Takoma’s failure to publish the 1974 copies of the recording with the required statutory copyright notice resulted in the irrevocable forfeiture of all rights under the United States copyright laws. The present copyright law, 17 U.S.C. § 101 et seq., was enacted on October 19, 1976 and became effective on January 1, 1978. Section 103 of the enactment, Public Law 94-553, Title I, 90 Stat. 2599, entitled “Lost and Expired Copyrights; Recording Rights,” provides that “[t]his Act does" }, { "docid": "5098298", "title": "", "text": "“collectively require and direct” the unlawful display of the Protected Photographs in Vapiano Restaurants “as a central part of those restaurants’ décor.” Id. ¶ 48. Count III asserts that the defendants are in violation of Foreign Copyright Laws for infringement of plaintiffs Protected Photographs occurring in Vapiano restaurants outside the United States. Id. ¶ 55. Vapiano SE argues that the Court lacks subject matter jurisdiction over any alleged acts of infringement occurring in foreign Vapiano restaurants, under either the Copyright Act, as asserted in Counts I and II of the Amended Complaint, or Foreign Copyright Laws, as asserted in Count III. The Court evaluates the defendant’s argument concerning each Count individually. 1. Count I: The Court Does Not Have Subject Matter Jurisdiction Over Allegations Of Foreign Infringement By Vapiano SE Vapiano SE seeks dismissal of Count I to the extent that it alleges violations of the Copyright Act for acts of infringement occurring in any Vapiano restaurant located outside the United States. To the extent that this motion would have the Court dismiss from the lawsuit claims relating to all foreign Vapiano restaurants, it sweeps too broadly on the current record. While infringing activity occurring abroad is not actionable under the Copyright Act, the Court does have subject matter jurisdiction over allegations that copyright infringement inside the United States is causing further infringement outside the United States. The Amended Complaint alleges that defendants Vapiano International and Vapiano USA committed such predicate acts of infringement, but fails to allege with sufficient specificity that Vapiano SE committed any predicate infringing acts inside the United States that resulted in the display of the Protected Photographs in foreign Vapiano restaurants. Accordingly, allegations contained in Count I of the Amended Complaint that Vapiano SE is liable for direct infringement under the Copyright Act for foreign acts of infringement are dismissed. It is well-established that the Copyright Act does not have extraterritorial effect. Subafilms, Ltd. v. MGMPathe Commc’ns Co., 24 F.3d 1088, 1095-96 (9th Cir.1994) (“The ‘undisputed axiom,’ that the United States’ copyright laws have no application to extraterritorial infringement ... consistently has been reaffirmed.” (internal" }, { "docid": "18901684", "title": "", "text": "infringing copy made or sold by or found in the possession of the infringer or his agent or employees . . . .” 17 U.S.C. § 101(b). In exercising its discretion, the Court must take into consideration a number of factors, the most relevant here being the relative degrees of innocence of the defendants. See, e. g., L&L White Metal Casting Corp. v. Cornell Metal Specialties Corp., 353 F.Supp. 1170, 1176 (E.D.N.Y. 1972) (Moore, J.). Because defendants Abend and Olympic Records were responsible for all aspects of production of the record set, including the procuring of copyright licenses where required, the Court awards damages in the full amount suggested by the statute, $1 per album for infringement of the copyrighted “Treemonisha In 3 Acts,” and $1 per album for infringement of the copyright covering the musical composition “Treemonisha (Prelude to Act III),” plus 8$ per album for infringement of the copyrighted composition “A Real Slow Drag: from Treemonisha.” “In lieu of” damages thus total $57,815.68. In that defendant Crown Publishers merely distributed the infringing product and had no part in its manufacture, the Court awards total damages of $1 per copy of the album set either sold or in its possession (inclusive of the 2$ per copy awarded under § 101(e)), for a total of $27,513. The Court declines to award counsel fees. CONCLUSION In accordance with the foregoing decision, plaintiff Mary L. Wormley is hereby granted judgment against defendants Joseph Abend and Olympic Records Corporation in the amount of $73,242.46 plus costs, and against defendant Crown Publishers, Inc. in the amount of $104,738.17 plus costs. Furthermore, defendants are enjoined from the further manufacture and sale of any phonograph recordings containing reproductions of any part of the instant compositions unless and until they acquire licenses therefor. The foregoing constitute the findings of fact and conclusions of law of the Court pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. SO ORDERED. . References herein are to sections of the Copyright Act as they existed prior to the copyright revisions of 1976, Pub.L. No. 94-553, 90 Stat. 2541 (October" }, { "docid": "12455244", "title": "", "text": "video to MCA in the United States. (Id. at 35.) Universal Scandinavia operates under a sub-licensing agreement in the United States. (Ingestrom Dep. at 39.) Thus, un der this sub-publishing agreement, Universal Scandinavia would receive royalties for each Aqua album sold in the United States. (Id. at 41.) There would also be royalty payments for each time a song was played on the radio. (Id. at 41-42.) MCA Scandinavia sent albums to the United States to their affiliates in the United States for publicity in the hopes of getting the Aqua album used in commercials or other commercial ventures. (Id. at 46-49.) All of the above contacts show sufficient purposeful availment of the United States by the foreign defendants. The district court cases upon which defendants rely are also distinguishable. In none of them do the defendants actually intend for their activities to have any effect in the forum. Here, the foreign defendants had an intent to affect the forum. Their licensing agreements, and coordination of the release strategies for the Aqua album, coupled with their sending of promotional products to the forum, suggest purposeful availment of the forum. 2. Claim Arises from Forum Activities Defendants argue that the foreign defendants have no meaningful forum-related activities with respect to the claims in this lawsuit. Defendants contend that the foreign defendants do not manufacture, sell or distribute the album in the United States. However, the foreign defendants’ conduct facilitates the activities that occurred in the United States. If plaintiffs claims are true, then the foreign defendants participated actively in the scheme that brought the Barbie Girl song to the United States. 3. Exercise of Jurisdiction Is Reasonable a.Extent of Purposeful Interjection into Forum Defendants rely on FDIC v. British-American Ins. Co. for the proposition that a contract is an insufficient basis to establish purposeful interjection into the forum. 828 F.2d 1439, 1443 (9th Cir.1987). However, in FDIC, the governing law of the contract was expressly not the law of the forum, and there were no activities in the forum other than using a forum bank to handle the one-time transaction. Id." }, { "docid": "23441313", "title": "", "text": "Right overlooked that it owed a portion of the payments to Appellants. Media Right, therefore, did not pay Appellants the $331.06 to which they were entitled. In 2006, Appellants discovered that digital copies of the Albums were available online. On April 16, 2007, Appellants filed a complaint against Appellees in the Southern District of New York, alleging direct and contributory copyright infringement, and seeking statutory damages. In 2008, Appellants and Appellees both moved for summary judgment in the case. They agreed to permit the District Court to treat the motions as a case stated. The Court conducted two evidentiary hearings before issuing its order. The Court held, in relevant part, that Appellees had committed direct copyright infringement by making and selling digital copies of the Albums and the individual songs on the Albums. The Court awarded Appellants statutory damages in the total amount of $2400, pursuant to Section 504 of the Copyright Act of 1976 (the “Act”). 17 U.S.C. § 504(c). The Act provides that a court can award statutory damages of not less than $750 or more than $30,000, “as the court considers just,” for all infringements with respect to one work, and that all parts of a “compilation” constitute one work. 17 U.S.C. § 504(c)(1). If the infringer proves that his infringement was innocent, the court may reduce damages to an amount not less than $200. 17 U.S.C. § 504(e)(2). If the copyright holder proves that infringement was willful, the court may increase the award to no more than $150,000. Id. The District Court made the following three rulings regarding damages, all of which Appellants contest on appeal. First, the Court held that the Albums were compilations, and thus that each Appellee was liable for only one award of statutory damages per Album, rather than one award per song, as Appellants had sought. Bryant v. Europadisk Ltd., 07 Civ. 3050 (WGY), 2009 WL 1059777, *6-8 (S.D.N.Y. April 15, 2009). Second, the Court found that Orchard had proven that its infringement was innocent, and thus ordered Orchard to pay only minimal statutory damages of $200 per Album, for a" }, { "docid": "23441312", "title": "", "text": "gave Orchard physical copies of the Albums, which bore copyright notices stating that the copyrights for the Albums were held by Appellants. When Media Right entered into the Orchard Agreement in 2000, Orchard sold only physical copies of recordings. In about April 2004, however, Orchard began making digital copies of the Albums to sell through internet-based music retailers such as iTunes. Internet customers were able to purchase and download digital copies of the Albums and individual songs on the Albums. Orchard did not inform Media Right or Appellants that it was selling digital copies of the Albums and individual songs on the Albums. From April 1, 2002 to April 8, 2008, Orchard generated $12.14 in revenues from sales of physical copies of the Albums, and $578.91 from downloads of digital copies of the Albums and of individual songs. Media Right’s share of these revenues was $413.82, of which $331.06 should have been forwarded to Appellants pursuant to the Media Right Agreement. Because the $413.82 was aggregated with other monies Orchard paid to Media Right, Media Right overlooked that it owed a portion of the payments to Appellants. Media Right, therefore, did not pay Appellants the $331.06 to which they were entitled. In 2006, Appellants discovered that digital copies of the Albums were available online. On April 16, 2007, Appellants filed a complaint against Appellees in the Southern District of New York, alleging direct and contributory copyright infringement, and seeking statutory damages. In 2008, Appellants and Appellees both moved for summary judgment in the case. They agreed to permit the District Court to treat the motions as a case stated. The Court conducted two evidentiary hearings before issuing its order. The Court held, in relevant part, that Appellees had committed direct copyright infringement by making and selling digital copies of the Albums and the individual songs on the Albums. The Court awarded Appellants statutory damages in the total amount of $2400, pursuant to Section 504 of the Copyright Act of 1976 (the “Act”). 17 U.S.C. § 504(c). The Act provides that a court can award statutory damages of not less than" }, { "docid": "5098300", "title": "", "text": "quotations and citations omitted)); Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 73 (2d Cir.1988); Robert Stigwood Grp. Ltd. v. O’Reilly, 530 F.2d 1096, 1101 (2d Cir.1976) (“Copyright laws do not have extraterritorial operation.”); Armstrong v. Virgin Records, 91 F.Supp.2d 628, 634 (S.D.N.Y.2000) (“As a general principle, it is not seriously disputed that United States copyright laws do not have extraterritorial effect ... ”). Thus, there is no cause of action under the Copyright Act for acts of infringement that occur completely outside the United States. Subafilms, 24 F.3d at 1091; Armstrong, 91 F.Supp.2d at 634. Consequently, a foreign actor who engages in or authorizes infringing activity while abroad, and no part of the infringing activity takes place in the United States, does not thereby violate U.S. copyright law and U.S. courts do not have subject matter jurisdiction over claims arising from that foreign activity. Notwithstanding the general rule barring extraterritorial application of the U.S. Copyright Act, courts have permitted claims under this law when infringement occurring outside the United States is “permitted or initiated by predicate acts of infringement within the United States.” Armstrong, 91 F.Supp.2d at 634. This occurs when (1) infringement occurs within the United States, and (2) this act initiates further infringement abroad. See id. (“[T]he unauthorized manufacture of infringing goods within the United States for subsequent sale abroad may give rise to a cause of action under the Copyright Act, even when the actual sale and distribution of infringing goods occurs outside of the United States proper.”); see also L.A. News Serv. v. Reuters Television Int’l, 149 F.3d 987, 991-93 (9th Cir.1998) (en banc), cert. denied, 525 U.S. 1141, 119 S.Ct. 1032, 143 L.Ed.2d 41 (1999) (where defendant made unauthorized copies of video footage in New York for retransmission abroad, court held compensatory relief could be awarded under U.S. law for exploitation abroad, as if the exploitation abroad had taken place at home); Update Art, 843 F.2d at 73 (stating that while copyright laws do not have extraterritorial application, “there is an exception — when the type of infringement permits further reproduction abroad" }, { "docid": "8367213", "title": "", "text": "was exported to Israel, the magistrate properly could include damages accruing from the Israeli newspapers. If ... this predicate act occurred in Israel, American copyright laws would have no application .... ”); Cf. Shaw v. Rizzoli Int'l Pubs., Inc., No. 96 CIV. 4259(JGK), 1999 WL 160084, at *3-4 (S.D.N.Y. Mar.23, 1999) (holding, where “parties agree[d] that both the English and Italian versions of the Rizzoli publications were compiled and printed entirely in Italy by [defendant] RCS, an Italian corporation,” that summary judgment was appropriate “as to the publications distributed in Italy”); FunDamental Too, 1996 WL 724784, at *6 (noting that “[b]ecause plaintiff has failed to allege any infringement within the United States that led to extraterritorial infringement, the general rule that extraterritorial infringements are not violations of the Copyright Act applies, and the extraterritorial acts of infringement are not within this court’s jurisdiction”). Given the record presented and Armstrong’s allegations, no predicate acts of infringement would appear to have occurred within the United States that could justify application of United States copyright law to subsequent acts of infringement undertaken in the United Kingdom or beyond. Rather, even when crediting Armstrong’s claims of infringement, it would seem that our unfolding story of infringement begins abroad, with the composition, distribution, and licensing of “Blue Lines” in Great Britain. Insofar as subject matter jurisdiction is concerned, however, United States copyright law cannot be applied to wholly foreign acts of infringement merely because foreign infringement will have adverse effects within the United States. See Subafilms, 24 F.3d at 1095. Consequently, to the extent that Armstrong seeks to recover for alleged acts of infringement solely committed abroad, such as the distribution and sale of “Blue Lines” albums in the United Kingdom, he could not obtain such recovery under our copyright laws. This is not the end of the story, however. A defendant in an infringement action may be held liable for acts of infringement if that defendant is either contribu-torily or vicariously liable for another’s direct act of infringement. Where those acts of infringement occur within the United States and a plaintiff seeks to hold" }, { "docid": "18901683", "title": "", "text": "530 F.2d 1096, 1101 n. 11 (2d Cir. 1976), cert. denied, 429 U.S. 848, 97 S.Ct. 135, 50 L.Ed.2d 121 (1977). With respect to “A Real Slow Drag,” for which a Notice of Use was filed on May 14, 1973, plaintiff is limited to a statutory royalty of two cents per record plus a further sum, not to exceed three times this amount, as the court may in its discretion award. Shapiro, Bernstein & Co. v. Goody, 248 F.2d 260, 265-66 (2d Cir. 1957), cert. denied, 355 U.S. 952, 78 S.Ct. 536, 2 L.Ed.2d 529 (1958). See 17 U.S.C. § 101(c). As for the infringement of “Treemonisha” as an entire work and “Prelude to Act III”, the Court is not so limited. In fact, it has broad discretion in awarding “in lieu of” damages, F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 73 S.Ct. 222, 97 L.Ed. 276 (1952); Morser v. Bengor Prods. Co., 283 F.Supp. 926, 929 (S.D.N.Y.1968) (MacMahon, J.), although the statute does suggest an award of “$1 for every infringing copy made or sold by or found in the possession of the infringer or his agent or employees . . . .” 17 U.S.C. § 101(b). In exercising its discretion, the Court must take into consideration a number of factors, the most relevant here being the relative degrees of innocence of the defendants. See, e. g., L&L White Metal Casting Corp. v. Cornell Metal Specialties Corp., 353 F.Supp. 1170, 1176 (E.D.N.Y. 1972) (Moore, J.). Because defendants Abend and Olympic Records were responsible for all aspects of production of the record set, including the procuring of copyright licenses where required, the Court awards damages in the full amount suggested by the statute, $1 per album for infringement of the copyrighted “Treemonisha In 3 Acts,” and $1 per album for infringement of the copyright covering the musical composition “Treemonisha (Prelude to Act III),” plus 8$ per album for infringement of the copyrighted composition “A Real Slow Drag: from Treemonisha.” “In lieu of” damages thus total $57,815.68. In that defendant Crown Publishers merely distributed the infringing product" }, { "docid": "17215945", "title": "", "text": "master to foreign manufacturers who were to manufacture and distribute the album. Harris has never received any royalties for the Gliding Bird album from the defendants. In November 1979, she demanded that defendants cease the manufacture and distribution of the songs. She then sued defendants for copyright infringement. With respect to the song “Gliding Bird”, the district court granted summary judgment in favor of Harris and subsequently enjoined defendants from further infringing the song “Gliding Bird.” After a bench trial, the court found that the defendants had infringed the copyrights of the remaining five songs. Appeals from the two judgments are consolidated. 1. Did Defendants Acquire A Valid Mechanical License from Jay-Gee? The threshold question in this case, and one which defendants claim requires a trial, is whether Suellen acquired a valid mechanical license to duplicate the song when it purchased Jay-Gee’s assets in bankruptcy. Defendants argue that when Suellen purchased the master tape of Gliding Bird from Jay-Gee’s trustee, Suellen also acquired Jay-Gee’s license to manufacture and distribute the recording. It is defendants’ position that Jay-Gee had two negotiated licenses to use the musical composition “Gliding Bird”, the one contained in the Harris/Jay-Gee Recording Agreement and the one contained in the Nanshel Agreement, and that both were assignable by the licensee Jay-Gee. Which license was valid depends on which party properly held the copyright to the composition. At most, defendants contend they may have breached a contract but they did not infringe a copyright. A. The Song “Gliding Bird” The defendants contend that the court erred in granting summary judgment with respect to copyright infringement of the song “Gliding Bird” because of the existence of genuine issues of material fact. Paragraph 10 of the Harris/Jay-Gee Recording Agreement reads as follows: In the event you [Harris] record a musical selection in which you have an interest, direct or indirect, in such musical selection or any copyright thereof, the copyright royalty payable by us [Jay-Gee] on such musical selection shall be 1V2$ per selection per record side. We [Jay-Gee] shall not pay any copyright royalty on a Public Domain selection recorded" }, { "docid": "23441330", "title": "", "text": "Id. . The few district courts that have considered whether a compilation is subject to only one statutory damage award have reached the same conclusion. See UMG Recordings, Inc. v. MP3.COM, Inc., 109 F.Supp.2d 223, 225 (S.D.N.Y.2000) (Rakoff, J.) (finding that where the infringed works were albums issued by the plaintiff, statutory damages should be awarded on a per-album basis); Country Road Music, Inc. v. MP3.com, Inc., 279 F.Supp.2d 325, 332 (S.D.N.Y.2003); Arista Records, Inc. v. Flea World, Inc., Civ. No. 03-2670, 2006 WL 842883, at *21 (D.N.J. Mar. 31, 2006); see also Xoom, Inc. v. Image-line, Inc., 323 F.3d 279, 285 (4th Cir.2003) (holding that plaintiff could receive only one statutory damage award for its computer clip art software, which contained many individual pieces of clip art, because plaintiff had packaged and sold the clip art in one piece of software, and thus the software constituted a compilation); Stokes Seeds Ltd. v. Geo. W. Park Seed Co., 783 F.Supp. 104, 106 (W.D.N.Y.1991) (holding that catalog containing many separately copyrighted photographs of plant seedlings constituted a compilation because plaintiff had assembled the photographs into a compilation (the catalog)). . In Robert Stigwood Group Ltd. v. O'Reilly, we held that each separately copyrighted song from the musical Jesus Christ Superstar could be the subject of a separate statutory damage award because each song could \"live [its] own copyright life.” 530 F.2d 1096, 1104-05 (2d Cir.1976). In Stigwood, however, we were awarding statutory damages pursuant to the Copyright Act of 1909, which provided for a separate statutory damage award \"for each infringement that was separate”; the Copyright Act of 1909 did not expressly limit the number of awards available for infringement of a compilation. Id. at 1102. The one-award restriction for compilations was introduced in the Copyright Act of 1976. We have previously recognized that the one-award restriction may render Stigwood’s holding inapplicable in cases involving compilations. See Twin Peaks, 996 F.2d at 1381. . Appellants contended that revenues must have been higher, but offered no evidence to support their claim." }, { "docid": "10733585", "title": "", "text": "As part of its Second Claim, ZFT alleges that Ryko breached the 1994 Agreement by “[r]eleasing several Vault Masters, including ‘Joe’s Garage,’ ‘Don’t Eat the Yellow Snow,’ ‘Montana,’ and a ‘disco’ or ‘dance’ version of ‘Dancin’ Fool,’ to which it had no rights.” (Compl. ¶ 16(d).) ZFT’s Seventh Claim asserts copyright infringement based on these same releases. (Compl. ¶ 79.) These Vault Masters were sold only on various releases of Strictly Commercial. Ryko asserts that these claims are barred by the 1999 Settlement. Gail Zappa admits that prior to 1999 she was aware of Ryko’s distribution of “Joe’s Garage,” “Yellow Snow,” and “Montana” on promotional releases of Strictly Commercial: The Best of Frank Zappa. (Declaration of Adelaide Gail Zappa dated April 9, 2010 (“Zappa Deck”) ¶ 48). However, other evidence in the record — the letter from Ryko to Gail Zappa regarding the marketing of Strictly Commercial as a “great gift idea” and the appearance of the album on pre-1999 royalty statements — clearly indicates that she was aware not just of promotional distribution, but also of sales. Accordingly, Gail Zappa’s Second and Seventh Claims are barred insofar as they relate to sales of “Joe’s Garage,” “Yellow Snow,” and “Montana” on CD releases of Strictly Commercial. “Dancin’ Fool” was sold only on an alternate release of Strictly Commercial in Japan. ZFT has offered no evidence that any infringing act occurred in the United States with respect to this release. Because United States copyright laws have no extraterritorial operation, Robert Stigwood Grp. Ltd. v. O’Reilly, 530 F.2d 1096, 1101 (2d Cir.1976), summary judgment is granted for Ryko insofar as ZFT’s Second Claim relates to “Dancin’ Fool.” B. The Restricted Cuts ZFT’s Fifth and Sixth Claims allege that Ryko “unlawfully, and without authority from [ZFT], digitally distributed, as singles, the Restricted Cuts,” thereby infringing on ZFT’s rights to the sound recordings and compositions, respectively. (Compl.¶¶50, 64.) “To succeed on a claim for direct infringement under the Copyright Act, a plaintiff must show (1) ownership of a valid copyright, and (2) unauthorized copying or a violation of one of the other exclusive rights" }, { "docid": "17215944", "title": "", "text": "September 19, 1969, Hannah Brown assigned it to Nanshel Music and the assignment was recorded in the Copyright Office. On the same day, Slocum wrote to Nanshel setting forth an understanding which provided in part “I have written and composed the musical composition ‘GLIDING BIRD’ which your company has copyrighted, and which will be registered with BMI with you as publisher.” In 1980, Nanshel assigned its copyright interest to Hannah Brown. In 1971, Jay-Gee filed a petition for bankruptcy. A year later, Jay-Gee’s trustee in bankruptcy sold parts of Jay-Gee’s assets — including the master tape of the six songs comprising the Gliding Bird Album— to defendant Suellen Productions, Inc. Suellen then transferred whatever rights it had acquired to manufacture and distribute the recordings on the Gliding Bird album to defendant Emus Recordings. Emus re-released a duplicate of the Gliding Bird album in 1979 with a new serial number and a different cover. Defendant Roulette Records, Inc. was licensed by Suellen and Emus to license foreign sales of the Gliding Bird album. Roulette provided a master to foreign manufacturers who were to manufacture and distribute the album. Harris has never received any royalties for the Gliding Bird album from the defendants. In November 1979, she demanded that defendants cease the manufacture and distribution of the songs. She then sued defendants for copyright infringement. With respect to the song “Gliding Bird”, the district court granted summary judgment in favor of Harris and subsequently enjoined defendants from further infringing the song “Gliding Bird.” After a bench trial, the court found that the defendants had infringed the copyrights of the remaining five songs. Appeals from the two judgments are consolidated. 1. Did Defendants Acquire A Valid Mechanical License from Jay-Gee? The threshold question in this case, and one which defendants claim requires a trial, is whether Suellen acquired a valid mechanical license to duplicate the song when it purchased Jay-Gee’s assets in bankruptcy. Defendants argue that when Suellen purchased the master tape of Gliding Bird from Jay-Gee’s trustee, Suellen also acquired Jay-Gee’s license to manufacture and distribute the recording. It is defendants’ position" }, { "docid": "5098299", "title": "", "text": "lawsuit claims relating to all foreign Vapiano restaurants, it sweeps too broadly on the current record. While infringing activity occurring abroad is not actionable under the Copyright Act, the Court does have subject matter jurisdiction over allegations that copyright infringement inside the United States is causing further infringement outside the United States. The Amended Complaint alleges that defendants Vapiano International and Vapiano USA committed such predicate acts of infringement, but fails to allege with sufficient specificity that Vapiano SE committed any predicate infringing acts inside the United States that resulted in the display of the Protected Photographs in foreign Vapiano restaurants. Accordingly, allegations contained in Count I of the Amended Complaint that Vapiano SE is liable for direct infringement under the Copyright Act for foreign acts of infringement are dismissed. It is well-established that the Copyright Act does not have extraterritorial effect. Subafilms, Ltd. v. MGMPathe Commc’ns Co., 24 F.3d 1088, 1095-96 (9th Cir.1994) (“The ‘undisputed axiom,’ that the United States’ copyright laws have no application to extraterritorial infringement ... consistently has been reaffirmed.” (internal quotations and citations omitted)); Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 73 (2d Cir.1988); Robert Stigwood Grp. Ltd. v. O’Reilly, 530 F.2d 1096, 1101 (2d Cir.1976) (“Copyright laws do not have extraterritorial operation.”); Armstrong v. Virgin Records, 91 F.Supp.2d 628, 634 (S.D.N.Y.2000) (“As a general principle, it is not seriously disputed that United States copyright laws do not have extraterritorial effect ... ”). Thus, there is no cause of action under the Copyright Act for acts of infringement that occur completely outside the United States. Subafilms, 24 F.3d at 1091; Armstrong, 91 F.Supp.2d at 634. Consequently, a foreign actor who engages in or authorizes infringing activity while abroad, and no part of the infringing activity takes place in the United States, does not thereby violate U.S. copyright law and U.S. courts do not have subject matter jurisdiction over claims arising from that foreign activity. Notwithstanding the general rule barring extraterritorial application of the U.S. Copyright Act, courts have permitted claims under this law when infringement occurring outside the United States is “permitted" }, { "docid": "17215943", "title": "", "text": "GOODWIN, Circuit Judge. Emmylou Harris, a singer, recovered a money judgment and injunctive relief against the defendants for infringing her copyrights in certain songs. Defendants appeal. In 1968, Harris entered into a written agreement with Jay-Gee Record Company in which she agreed to record songs in exchange for royalties equalling 3% of the net retail list price of each record sold. Pursuant to the agreement, she recorded six songs which were released by Jay-Gee on an album entitled Gliding Bird. Five of the songs were written and composed by Harris. The copyrights to each of these compositions were held in the names of Hannah Brown Music (a company wholly owned by Harris), Nanshel Music and Jubilant Music. In 1969, all three companies issued mechanical licenses to Jay-Gee. Under the 1909 Copyright Act then in force, such licenses are necessary to enable one to duplicate a musical composition copyrighted by another. The sixth song, entitled “Gliding Bird,” was composed by Tommy Slocum. The copyright originally was incorrectly registered in the name of Hannah Brown Music. On September 19, 1969, Hannah Brown assigned it to Nanshel Music and the assignment was recorded in the Copyright Office. On the same day, Slocum wrote to Nanshel setting forth an understanding which provided in part “I have written and composed the musical composition ‘GLIDING BIRD’ which your company has copyrighted, and which will be registered with BMI with you as publisher.” In 1980, Nanshel assigned its copyright interest to Hannah Brown. In 1971, Jay-Gee filed a petition for bankruptcy. A year later, Jay-Gee’s trustee in bankruptcy sold parts of Jay-Gee’s assets — including the master tape of the six songs comprising the Gliding Bird Album— to defendant Suellen Productions, Inc. Suellen then transferred whatever rights it had acquired to manufacture and distribute the recordings on the Gliding Bird album to defendant Emus Recordings. Emus re-released a duplicate of the Gliding Bird album in 1979 with a new serial number and a different cover. Defendant Roulette Records, Inc. was licensed by Suellen and Emus to license foreign sales of the Gliding Bird album. Roulette provided a" }, { "docid": "3332496", "title": "", "text": "either to the distribution and sale of the album or to the performance of the allegedly infringing work within the limitations period. We affirm on this basis and do not reach the question of whether a publisher may be found liable for infringing sales occurring within the limitations period when its only actions were the granting of a license outside the period and the receipt of royalty payments under that license within the limitations period. Bridgeport has also failed to demonstrate a basis to find UPIP vicariously liable for the acts of a direct infringer. 1. Mechanical License Bridgeport repeatedly emphasizes that there was evidence that the “Home Invasion” album continued to be sold and offered for sale after May 4, 1998. There is no claim, however, that UPIP was directly involved in the manufacture, distribution, or sale of the album. Nor is there evidence from which a rational trier of fact could conclude that UPIP ever granted a mechanical license for use of the composition “99 Problems” on the “Home Invasion” album. UPIP became a co-owner of the composition more than a year after the album’s release and has flatly denied ever granting a license for the use of the composition. Specifically, UPIP offered the affidavit of Edward Arrow, a vice-president of copyrights, attesting that there is no record that UPIP ever issued any mechanical, performance, synchronization, sheet/music or other licenses, or distributed or otherwise exploited sheet music for the musical composition “99 Problems.” Arrow also stated that UPIP never controlled the sale, distribution, or public performance of the “Home Invasion” album; the issuance of blanket performance licenses; or the apportionment of fees generated by such licenses. In addition, UPIP’s records showed that it did not receive any mechanical royalties for the sale of “99 Problems.” In fact, Anthony Sarageueta, vice-president of royalties, testified that while UPIP would seem to have a right to mechanical royalties, he could not explain without conducting further research why UPIP had not received any such royalties. The burden was on Bridgeport to follow up with further discovery in its attempt to connect UPIP" } ]

[ { "docid": "4636493", "title": "", "text": "added). Section 507(a), in turn, grants first priority status to administrative expenses allowed pursuant to § 503(b). The burden of proving entitlement to an administrative expense priority rests with the party seeking its allowance. In re Highland Group, Inc., 136 B.R. 475, 481 (Bankr.N.D.Ohio 1992); In re Patch Graphics, 58 B.R. 743 (Bankr.W.D.Wis.1986). Statutory priorities are narrowly construed. Trustees of Amalgamated Ins. Fund v. McFarlin’s, Inc., 789 F.2d 98, 100 (2nd Cir.1986) citing Joint Industry Bd. of Electrical Industry v. United States, 391 U.S. 224, 228, 88 S.Ct. 1491, 1493, 20 L.Ed.2d 546 (1968). The determination of whether an administrative expense will be allowed turns on the timing of the services rendered for which the allowance is sought. The Seventh Circuit has adopted a two part test originally'set forth by the First Circuit in In re Mammoth Mart, Inc., 536 F.2d 950 (1976) which provides that an administrative expense is allowed where the debt (1) arises from a transaction with the debtor-in-possession; and (2) is beneficial to the debtor-in-possession in the operation of its business. In re Jartran, 732 F.2d 584, 586 (7th Cir.1984). As this test demonstrates, it is the time at which the services are rendered that is dispositive of the issue of whether an administrative expense is allowed. The fact that a creditor’s right to payment depends on a post-petition contingency is irrelevant. In re Precision Carwash Corp., 90 B.R. 34 (Bankr.E.D.N.Y.1988) citing Denton & Anderson Co. v. Induction Heating Corp., 178 F.2d 841 (2nd Cir.1949); In re Highland Group, Inc., 136 B.R. 475 (Bankr.N.D.Ohio 1992). Priority status is conferred upon administrative expenses to induce third parties to provide services to the debtor-in-possession on credit. In re Jartran, Inc., 732 F.2d 584, 586 (7th Cir.1984). Without priority status, it is unlikely a debtor-in-possession could obtain post-petition services without paying for them in advance. Jartran at 586. Allowance of administrative priority status benefits unsecured creditors by inducing third parties to provide services to the debtor-in-possession and presumably increasing the likelihood of a successful reorganization that will result in a greater disbursement of funds to the unsecured creditors than" } ]

[ { "docid": "17478920", "title": "", "text": "terms of actually getting paid if, in the course, the claimant has not also established its claim’s § 726(a) priority. For example, an unsecured creditor seeking administrative claim treatment within § 726(a)(1) (ahead of the general pool of unsecured creditors) has the burden of proving the elements that qualify it for that status. See, e.g., McMillan v. LTV Steel, Inc., 555 F.3d 218, 226 (6th Cir.2009); Supplee v. Bethlehem Steel Corp. (In re Bethlehem Steel Corp.), 479 F.3d 167, 172 (2d Cir.2007); Isaac v. Temex Energy, Inc. (In re Amarex, Inc.), 853 F.2d 1526, 1530 (10th Cir.1988); In re Franklin, 284 B.R. 739, 742 (Bankr.D.N.M.2002); In re Philadelphia Mortg. Trust, 117 B.R. 820, 827 (Bankr.E.D.Pa.1990); see also Woburn Assocs. v. Kahn (In re Hemingway Transport, Inc.), 954 F.2d 1 (1st Cir.1992); In re Beyond Words Corp., 193 B.R. 540, 543 (N.D.Cal.1996). A party in interest may object to a claimant’s right to be paid as a general unsecured claim. In such instances, when a substantial objection to the claimed priority is interposed, the claimant shoulders the burden of proving its entitlement to payment under § 726(a)(2). Once a claim is deemed allowed, its priority must be determined. In most Chapter 7 cases, like this one, a claim holder’s “rung” on the priority “ladder” created under section 726 is crucial because the estate assets are limited. There are usually insufficient assets to pay all claimants in full, and section 726(b) mandates pro rata distribution among all claimants at each level, or rung of the priority ladder, with an absolute priority cutoff. All allowed claimants at a particular level or rung of the ladder must be paid in full before any estate funds can be distributed to holders of claims at the next lower rung. Thus, the race among claimants is to reach the highest rung on the claims ladder. In re Stoecker, 151 B.R. 989, 995 (Bankr.N.D.Ill.1992), rev’d on other grounds, 179 B.R. 532 (N.D.Ill.1994). There is no presumed, or “default,” “rung” on the priority ladder; creditors are not automatically assigned to the “general unsecured” pool. Rather, each creditor must demonstrate" }, { "docid": "10280769", "title": "", "text": "Ltd. (In re Monarch Beach Venture, Ltd.), 166 B.R. 428, 431-32 (C.D.Cal.1993); In re Woodstock Assoc’s I, Inc., 120 B.R. 436, 453 (Bankr.N.D.Ill.1990); Rusty Jones, 110 B.R. at 373. One court applied the preponderance of the evidence standard to the requirements under § 1129(a) and the clear and convincing standard under the cram down provisions of § 1129(b). In re MCorp Fin., Inc., 137 B.R. 219, 225 (Bankr.S.D.Tex.1992). We find the preponderance of the evidence to be the correct burden of proof in the context of plan confirmation. The Supreme Court recently applied the preponderance of the evidence standard to nondischargeability proceedings under § 523(a). Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). Similarly, the Tenth Circuit applied the preponderance of the evidence standard to the general discharge under § 727. In re Serafini, 938 F.2d 1156, 1157 (10th Cir.1991). Despite this apparent trend, the district court in Briscoe did not apply the Grogan and Serafini standard to plan confirmation. Briscoe, 138 B.R. at 804-OS. The Briscoe court limited the holdings in those cases to the issue of dischargeability stating “[t]he clear and convincing test is the logical one to apply [in plan confirmation] because of the stricter scrutiny required when property and property rights are sought to be taken.” Briscoe, 138 B.R. at 805 (citing Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935)). The Fifth Circuit reversed stating that the district court’s analysis is too narrow a reading of Grogan: [B]oth § 1129 and the legislative history are silent as to the burden of proof. This case is solely about money. There are not even any quasi-liberty interests at stake. It is correct, of course, as Justice Brandéis noted during the depression in a case involving the significant alteration of farm mortgagees’ rights, that the bankruptcy laws are subject to the Takings clause. The Code, however, has been the primary source of the creditors’ protections not the Fifth Amendment. Congress provides protections for creditors, and in many instances allows" }, { "docid": "8336678", "title": "", "text": "almost always needs a physical space to occupy. When a debtor owns no suitable real estate of its own, its only choice is to become a tenant, and to assume the obligation of paying periodic rent to a landlord. In such circumstances, therefore, rent is clearly and “actual, necessary” cost of preserving the estate, since the debtor’s survival depends on its ability to pay the landlord for the right to possess the space necessary to conduct its business (emphasis added). 893 F.2d at 627. The court’s ruling in Zagata, although addressing the issue of payments for the debtor’s real-estate rental, is equally appli cable to the situation in issue here. It is clear that the Debtor had no vehicles of its own to sub-lease to its customers. The Debtor’s only choices were to lease motor vehicles and assume the obligation of paying periodic rent to Lauderhill for same or to cease doing business. Accordingly, the expense of leasing Lauderhill’s vehicles should generally be classified as an expense which Lauderhill is entitled to request as an administrative claim, b. Although Lauderhill established that it is entitled to an administrative expense for its post-petition vehicle rentals to the Debtor, it was unable to prove the precise amount of its claim. An applicant for an award of administrative expenses has the burden of proving that an entitlement to the claim sought by establishing that the Debtor’s estate benefited from the applicant’s services to the extent of the claim allowed. See In re Amarex, Inc., 853 F.2d 1526, 1530 (10th Cir.1988); In re FRG, Inc., 124 B.R. 653, 658 (Bankr.E.D.Pa.1991). See also In re Woodstock Associates I, Inc., 120 B.R. 436, 451 (Bankr.N.D.Ill.1990) (burden of proving entitlement to administrative expenses is on claimant, and standard of proof is preponderance of the evidence); Philadelphia Mortgage Trust, supra, 117 B.R. at 827 (“the burden of proving entitlement to a priority is on the person claiming priority”); and In re United States Lines, Inc., 103 B.R. 427, 429 (Bankr.S.D.N.Y.1989) (burden of proof as to substantial benefit rendered to estate is on applicant for administrative-expense claim, and entitlement" }, { "docid": "5752337", "title": "", "text": "expenses. See Southern Ry. Co. v. Johnson Bronze Co., 758 F.2d 137, 141 (3d Cir.1985); In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 658 F.2d 1149, 1163 (7th Cir.), cert. denied sub nom., Railway Labor Executives Ass’n. v. Ogilvie, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982); In re Philadelphia Mortgage Trust, 117 B.R. 820, 825 (Bankr.E.D.Pa.1990); In re Massetti, 95 B.R. 360, 363 (Bankr.E.D.Pa.1989); In re SMB Holdings, Inc., 77 B.R. 29, 32 (Bankr.W.D.Pa.1987) (conferral of administrative expense priority where not clearly entitled under the Code dilutes priorities scheme prescribed by Congress). The burden of proving entitlement to priority payment as an administrative expense therefore rests with the party requesting it. See Woods v. City Nat. Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941); In re Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986). The Bankruptcy Code permits top priority payment of “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)(A), as a means of enabling the debtor estate to acquire the requisite post-petition credit with which to preserve itself after the filing of the petition. Preservation of the estate includes protection of the assets of the estate, as well as postpetition operation of the business of the debtor. See, e.g., In re Mammoth Mart, Inc., 536 F.2d 950, 954 (1st Cir.1976); In re Jartran, Inc., 732 F.2d 584, 586 (7th Cir.1984); In re Pierce Coal & Constr., Inc., 65 B.R. 521, 530 (Bankr.D.W.Va.1986). As a general rule, a request for priority payment of an administrative expense pursuant to Bankruptcy Code § 503(a) may qualify if (1) the right to payment arose from a postpetition transaction with the debtor estate, rather than from a prepetition transaction with the debtor, and (2) the consideration supporting the right to payment was beneficial to the estate of the debtor. See In re Mammoth Mart, Inc., 536 F.2d at 954; see also Jartran, 732 F.2d at 587. There is no dispute that Woburn’s request" }, { "docid": "14561000", "title": "", "text": "1947.) Confirmation 26. Proponents of a plan have the burden of proving by a preponderance of the evidence that all of the requirements of § 1129(a) have been met. Home Savings Ass’n v. Woodstock Assocs. I, Inc. (In re Woodstock Assocs. I, Inc.), 120 B.R. 436, 453 (Bankr.N.D.Ill.1990); In re Rusty Jones, Inc., 110 B.R. 362, 373 (Bankr. N.D.Ill.1990); In re Arnold, 80 B.R. 806, 807 (Bankr.M.D.La.1987). Proponents’ burden of proof under § 1129(b), the cram-down provision, calls for clear and convincing evidence. In re Rusty Jones, Inc., 110 B.R. 362, 373 (Bankr.N.D.Ill.1990); In Future Energy Corp., 83 B.R. 470 (Bankr. S.D.Ohio 1988); In re Agawam Creative Marketing Assocs. Inc., 63 B.R. 612 (Bankr.D.Mass.1986); In re Stoffel, 41 B.R, 390 (Bankr.D.Minn.1984). 27. In addition to considering the objections of creditors, the court has a mandatory independent duty to determine whether the plan has met all of the requirements necessary for confirmation. Matter of Williams, 850 F.2d 250 (5th Cir.1988); In re Holthoff, 58 B.R. 216 (Bankr. E.D.Ark.1985). 28. The bankruptcy court must consider the entire plan in the context of the particular facts and circumstances of the case. In re D & F Construction, Inc., 865 F.2d 673, 675 (5th Cir.1989). 29. Subsection (a) of §' 1129 enumerates the requirements governing confirmation of a plan. It contains eleven paragraphs setting forth standards with regard to the plan or the proponent of the plan. Although the legislative history states that the court is to confirm a plan if and only if all of the requirements of subsection (a) are met, the cramdown provisions in § 1129(b) do provide a way in which a plan may be confirmed even if the requirements of subsection (a)(8) are not met. See H.Rept. No. 95-595, p. 412, U.S.Code Cong. & Admin.News 1978, pp. 5787, 6368. 30. Section 1129(a)(1) makes one of the requirements of a plan (regardless of whether the method of cramdown is implemented) the compliance with the applicable provisions of Title 11. A number of the objections to the confirmation of the plan are based upon related provisions of the Code which are" }, { "docid": "16453169", "title": "", "text": "D.W.G.K. Restaurants, Inc., 84 B.R. 684, 689 (Bankr.S.D.Cal.1988); In re American International Airways, Inc., 77 B.R. 490, 494 (Bankr.E.D.Pa.1987); and In re Rife, 71 B.R. 129, 131 (Bankr.W.D.Va.1987). Thus, we can agree with the statement of the court in In re York International Building, Inc., 527 F.2d 1061, 1068 (9th Cir.1975), that [e]xtravagant allowance of fees and other costs of administration in bankruptcy estates have long been denounced as “crying evils.” In re Realty Associates Securities Corp. v. O’Connor, [295 U.S. 295, 299, 55 S.Ct. 663, 665, 79 L.Ed. 1446 (1935)]. A creditor’s characterization of its claim as an administrative expense entitled to priority is not determinative of the claim’s status. Even if no objections to the claimed priority status are raised, the bankruptcy court must determine, in its discretion, the priority of the claim. Guaranty National Insurance Co. v. Greater Kansas City Transp., Inc., 90 B.R. 461, 462-63 (D.Kan.1988). The “burden of proving entitlement to a priority is on the person claiming priority.” Amarex, supra, 853 F.2d at 1530, quoting O.P.M. Leasing, supra, 60 B.R. at 680. See also Moore, supra, 109 B.R. at 780 (the burden to demonstrate that the claim is an administrative claim is upon the movant); Patch Graphics, supra, 58 B.R. at 745, citing Woods v. City National Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941) (the burden of proof is upon the party seeking an administrative claim); and In re Central Rubber Products, Inc., 31 B.R. 865, 870 (Bankr.D.Conn.1983), quoting 3A COLLIER ON BANKRUPTCY, 11 64.701, at 2276 (14th ed. 1975) (unlike a general claim, “a claim of priority when alleged does not shift the burden of going forward to an objector thereto, the claimant must introduce proof sustaining his claim to priority”). See also Consolidated Oil & Gas, supra, 110 B.R. at 537; In re Fall, 93 B.R. 1003, 1012 (Bankr.D.Or.1988); and D.W.G.K. Restaurants, supra, 84 B.R. at 689. The bankruptcy court has considerable discretion in deciding whether to characterize a claim as an administrative expense entitled to the attendant priority provided by § 503(b)(1)(A)" }, { "docid": "10193036", "title": "", "text": "constitutes a vote for or against the plan. Second procedural objection: Was the notice of amendment sufficient? 7. The plan of reorganization was modified because of the indication in the first Greystone opinion that the new value exception did not survive the enactment of the Bankruptcy Code. Greystone v. Phoenix Mutual Life Ins. Co. (In re Greystone), 948 F.2d 134 (5th Cir.1991). Subsequently, the portion of Greystone that caused the plan amendment was withdrawn. Greystone v. Phoenix Mutual Life Ins. Co. (In re Greystone), 1991 WL 239280, 1992 U.S.App. LEXIS 2758 (5th Cir.1992). 8. HUD objected that it had not had sufficient time to evaluate the modification of the plan and that the plan modification adversely impacted other creditors. The Debtor responded that the modification did not adversely impact other creditors. Based on the rule 3019, Fed.R.Bankr.Proc. 3019, and the reasoning in In re American Solar King Corp., 90 B.R. 808, 823-24 (Bankr.W.D.Tex.1988), the court found that notice was adequate. 9. As to HUD’s objection that other creditors would not consent to the modifications of the plan if they knew about them, creditors lack standing to challenge provisions of a plan that do not affect them. Fed.R.Bankr.Proc. 3020(b); In re B. Cohen & Sons Caterers, Inc., 124 B.R. 642 (Bankr.E.D.Pa.1991), appeal dismissed, 908 F.2d 963 (3d Cir.1990). CONFIRMATION 10. Section 1129 establishes the requirements for confirmation. This court follows the majority view that proponents of plans must prove the requirements of 1129(a) by a preponderance of the evidence. E.g. In re MCorp Financial, 137 B.R. 219, 225 (Bankr.S.D.Tex.1992), appeal dismissed, 139 B.R. 820 (S.D.Tex.1992); Home Savings Ass’n v. Woodstock Assocs. I, Inc. (In re Woodstock Assocs. I, Inc.), 120 B.R. 436, 453 (Bankr.N.D.Ill.1990); but see In re Briscoe Enterprises Ltd., II, 138 B.R. 795, 804-05 (Bankr.N.D.Tex.1992) (discussing case law and indicating that appropriate standard is clear and convincing evidence). 11. Courts have held that under section 1129(b), the cramdown provision, the burden is clear and convincing evidence. Briscoe, 138 B.R. at 804; MCorp, 137 B.R. at 225. 12. The court has a mandatory, independent duty to review plans and ensure" }, { "docid": "14560999", "title": "", "text": "nohtransferable units in a separate trust; and (2) is not fair and equitable with respect to Class 15, the MMP Equity Interests, as certain classes senior to Class 15 may receive more than the allowed amount of their claim. 24. A limited objection was filed by Karl Butz, Jr. requesting that Debtors demonstrate that the stipulated amount of his Employee Stock Plan claim as set forth in Exhibit 8 to the plan was calculated consistently with other claimants in the same class. Counsel for Debtors announced in court that Butz's concerns were resolved prior to the hearing and that Butz would not be pursuing his objection. (See Trial Transcript, 11/13/91, pp. 11, 12.) 25. MCorp Class 15, consisting of the senior equity interests in MCorp (primarily Shearson) voted to reject the MCorp plan. The Debtors then requested confirmation of the MCorp plan in accordance with § 1129(b) of the Bankruptcy Code, the “cramdown” provisions. (See Request for Confirmation of the Chapter 11 Plan of MCorp Pursuant to Section 1129(b) of the Bankruptcy Code, Docket No. 1947.) Confirmation 26. Proponents of a plan have the burden of proving by a preponderance of the evidence that all of the requirements of § 1129(a) have been met. Home Savings Ass’n v. Woodstock Assocs. I, Inc. (In re Woodstock Assocs. I, Inc.), 120 B.R. 436, 453 (Bankr.N.D.Ill.1990); In re Rusty Jones, Inc., 110 B.R. 362, 373 (Bankr. N.D.Ill.1990); In re Arnold, 80 B.R. 806, 807 (Bankr.M.D.La.1987). Proponents’ burden of proof under § 1129(b), the cram-down provision, calls for clear and convincing evidence. In re Rusty Jones, Inc., 110 B.R. 362, 373 (Bankr.N.D.Ill.1990); In Future Energy Corp., 83 B.R. 470 (Bankr. S.D.Ohio 1988); In re Agawam Creative Marketing Assocs. Inc., 63 B.R. 612 (Bankr.D.Mass.1986); In re Stoffel, 41 B.R, 390 (Bankr.D.Minn.1984). 27. In addition to considering the objections of creditors, the court has a mandatory independent duty to determine whether the plan has met all of the requirements necessary for confirmation. Matter of Williams, 850 F.2d 250 (5th Cir.1988); In re Holthoff, 58 B.R. 216 (Bankr. E.D.Ark.1985). 28. The bankruptcy court must consider the entire" }, { "docid": "18715885", "title": "", "text": "the pendency of a chapter 11 case. Prime, 37 B.R. at 898. An administrative expense may not be allowed absent a finding that the expense is necessary for preserving the estate. In Re Club Development & Management Corp., 27 B.R. 610, 612 (Bankr.App. 9th Cir.1982); In Re Rhymes, Inc., 14 B.R. 807, 808 (Bankr.D.Conn.1981). Since an administrative expense constitutes a priority claim any recovery must be subject to strict scrutiny by the court. Priority statutes are strictly construed. Standard Oil Company v. Kurtz, 330 F.2d 178, 180 (8th Cir.1964). The burden of proof is upon the party seeking an administrative claim. See Woods v. City Nat. Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941). The terms “actual” and “necessary” contained in 11 U.S.C. § 503(b)(1)(A) must be narrowly construed in order to keep administrative expenses at a minimum and thus preserve the estate for the benefit of all creditors. In Re O.P.M. Leasing Services, Inc., 23 B.R. 104, 121 (Bankr.S.D.N.Y.1982); see Otte v. United States, 419 U.S. 43, 53, 95 S.Ct. 247, 254, 42 L.Ed.2d 212 (1974). It is not sufficient merely to show that the debtor exercised “business judgment” in order to support a claim under section 503(b)(1). See Club Development, 27 B.R. at 612. In the present case a mere showing that the equipment in question was purchased as a result of reasonable and prudent business judgment is insufficient. A showing that the equipment was necessary to preserve the estate would also be required. Furthermore, claims under section 503(b)(1)(A) are judged by the actual value received by the estate and not the cost incurred by the creditor. See In Re California Steel Company, 24 B.R. 185, 188 (Bankr.N.D.Ill.1982); In Re Rhymes, Inc., 14 B.R. at 808. In addition to being “actual” and “necessary,” expenses sought to be reimbursed under section 503(b)(3)(D) must have resulted in a “substantial contribution” to the case. See In Re Lyons Machinery Co., Inc., 28 B.R. 600 (Bankr.E.D.Ark.1983); In Re Farm Bureau Services, Inc., 32 B.R. 69, 71 (Bankr.E.D.Mich.1982). When a creditor incurs expenses primarily to" }, { "docid": "5752336", "title": "", "text": "before its filing.” II DISCUSSION A. The Woburn Appeal: Administrative Expense Priority Woburn contends on appeal that the bankruptcy court committed reversible error by disallowing its request for priority payment of its attorney fees as an administrative expense. See 11 U.S.C. §§ 503(a), (b)(1)(A) & 507(a)(1). Woburn argues that administrative priority status is appropriate in these circumstances as a deterrent against the frivolous and ill-advised decision of the trustee to activate Woburn’s right to indemnification under the Hemingway lease by commencing the third party action against Woburn. See, e.g., In re E.A. Nord Co., 78 B.R. 289, 292 (Bankr.W.D.Wash.1987). Woburn argues alternatively that principles of fundamental fairness warrant priority payment of its attorney fees as an administrative expense incurred as a consequence of the trustee’s operation of the business of the debtor estate. See Reading Co. v. Brown, 391 U.S. 471, 88 S.Ct. 1759, 20 L.Ed.2d 751 (1968). The traditional presumption favoring ratable distribution among all holders of unsecured claims counsels strict construction of the Bankruptcy Code provisions governing requests for priority payment of administrative expenses. See Southern Ry. Co. v. Johnson Bronze Co., 758 F.2d 137, 141 (3d Cir.1985); In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 658 F.2d 1149, 1163 (7th Cir.), cert. denied sub nom., Railway Labor Executives Ass’n. v. Ogilvie, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982); In re Philadelphia Mortgage Trust, 117 B.R. 820, 825 (Bankr.E.D.Pa.1990); In re Massetti, 95 B.R. 360, 363 (Bankr.E.D.Pa.1989); In re SMB Holdings, Inc., 77 B.R. 29, 32 (Bankr.W.D.Pa.1987) (conferral of administrative expense priority where not clearly entitled under the Code dilutes priorities scheme prescribed by Congress). The burden of proving entitlement to priority payment as an administrative expense therefore rests with the party requesting it. See Woods v. City Nat. Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941); In re Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986). The Bankruptcy Code permits top priority payment of “actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of" }, { "docid": "18767868", "title": "", "text": "Substantial contribution has been defined as Services ... which foster and enhance, rather than retard or interrupt the progress of reorganization ... Those services which are provided solely for the client-as-creditor, such as those services rendered in prosecuting a creditor’s claim, are not compensable. [Compensable services] are those which facilitated the progress of these cases.... In re Richton International Corp., 15 B.R. 854, 857 (Bankr.S.D.N.Y.1981). Put another way, services must provide a “demonstrable benefit to the debtor’s estate, [or] the creditors, ... in order to be compensable. In re Jensen-Farley Pictures, Inc., 47 B.R. at 569. In re Paolino, 71 B.R. 576 (Bankr.E.D.Pa.1987). An incidental benefit is not a sufficient basis to grant an administrative priority. Matter of Patch Graphics, 58 B.R. 743, 746 (Bankr.W.D.Wis.1986). In addition to the requirement that the creditor show that the services rendered a significant and demonstrable benefit, an administrative expense may not be allowed absent a finding that the expense is necessary for preserving the estate. In re Club Development & Management Corp., 27 B.R. 610, 612 (9th Cir.BAP 1982). Since an administrative expense constitutes a priority claim, any recovery must be subject to strict scrutiny by the court. Priority statutes are strictly construed. Standard Oil Company v. Kurtz, 330 F.2d 178, 180 (8th Cir.1964). The burden of proof is on the party making the administrative claim. Patch Graphics, 58 B.R. at 745. See, Woods v. City National Bank and Trust Company, 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941). The term “actual” and “necessary” must be narrowly construed to preserve the estate. Patch Graphics, 58 B.R. at 745. The movant bears a heavy burden in requesting compensation under § 503(b). While “substantial contribution” does not require a contribution that leads to confirmation of a plan the phrase clearly requires contribution which provides tangible benefits to the bankruptcy estate and the other unsecured creditors. Thus to the extent that the “substantial contribution” requirement adds anything to the requirements discussed previously, it is to increase the burden of proof which a claimant for administrative expense must bear. Patch Graphics, 58 B.R." }, { "docid": "3047751", "title": "", "text": "Party Masters, Inc.), Case No. 91 B 22949, Adv. No. 92ap00010, 1992 WL 106259, at *23 (Bankr. N.D. Ill. Apr. 23, 1992) (Squires, J.) (“The burden of proving entitlement to an administrative expense is on the claimant and the standard of proof is a preponderance of the evidence,”). In determining how the statute is to be applied and whether the applicant has borne its burden, the court looks at the plain language of the statute. Marek v. Chesny, 473 U.S. 1, 16, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (“[T]he starting point in interpreting statutes and rules is always the plain words themselves[.]”); United States v. Boyles, 57 F.3d 535, 544 (7th Cir. 1995) (“[T]he best way to interpret statutes is to look to their plain language!!]”). In utilizing that plain language approach, it becomes immediately clear that the subsections of 503(b)(1)(A) must be read independently. Because 503(b)(1)(A) introduces a nonexhaustive, demonstrative list, it is not necessary to satisfy each of the two subsections of section 503(b)(1)(A) to be entitled to an administrative claim. See In re Truland Grp., Inc., 520 B.R. 197, 203 (Bankr. E.D. Va. 2014) (concluding that the use of the word “and” “does not require [claimants] to satisfy both subsections”); In re Philadelphia Neivspwpers, LLC., 433 B.R. 164, 174 (Bankr. E.D. Pa. 2010) (same); Henderson v. Powermate Holding Corp. (In re Powermate Holding Corp.), 394 B.R. 765, 774 (Bankr. D. Del. 2008) (same). Contra In re First Magnus Fin. Corp., 390 B.R. 667, 677 (Bankr. D. Ariz. 2008), aff'd, 403 B.R. 659 (D. Ariz. 2009) (holding that “both parts of the subsections must exist in order for a claimant to be entitled to an administrative expense”) (emphasis in original). Any other reading of this section is nonsensical, and would require by extension, that all subsections of 503(b)—also introduced by “including” and joined by “and”—to be met for a claim to be afforded administrative status. That is simply not the case. Truland Grp., 520 B.R. at 203 (“No one would seriously suggest that an administrative claimant must satisfy all nine subsections in Section 503(b) in order to" }, { "docid": "16453170", "title": "", "text": "B.R. at 680. See also Moore, supra, 109 B.R. at 780 (the burden to demonstrate that the claim is an administrative claim is upon the movant); Patch Graphics, supra, 58 B.R. at 745, citing Woods v. City National Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941) (the burden of proof is upon the party seeking an administrative claim); and In re Central Rubber Products, Inc., 31 B.R. 865, 870 (Bankr.D.Conn.1983), quoting 3A COLLIER ON BANKRUPTCY, 11 64.701, at 2276 (14th ed. 1975) (unlike a general claim, “a claim of priority when alleged does not shift the burden of going forward to an objector thereto, the claimant must introduce proof sustaining his claim to priority”). See also Consolidated Oil & Gas, supra, 110 B.R. at 537; In re Fall, 93 B.R. 1003, 1012 (Bankr.D.Or.1988); and D.W.G.K. Restaurants, supra, 84 B.R. at 689. The bankruptcy court has considerable discretion in deciding whether to characterize a claim as an administrative expense entitled to the attendant priority provided by § 503(b)(1)(A) or not. See Baldwin-United, supra, 43 B.R. at 453 (bankruptcy court has “reasonable discretion” in awarding administrative priority expenses); Moore, supra, 109 B.R. at 780, citing In re Dakota Industries, 31 B.R. 23, 26 (Bankr.S.D.D.1983) (the court has broad discretion to determine whether a claim for an administrative expense is, in actuality, an administrative expense); and Rife, supra, 71 B.R. at 131 (“while the court has reasonable discretion in interpreting the provisions of § 503, such discretion does not include the power to go beyond the clear intent and well-established construction of the statute”). See also Guaranty National, supra, 90 B.R. at 462-63; and In re Texaco, Inc., 90 B.R. 622, 630 (Bankr.S.D.N.Y.1988). Section 503(b)(1)(A), quoted on page 825 supra, provides that only “the actual, necessary costs and expenses of preserving the estate” of a debtor are entitled to priority status as administrative expenses. Mammoth Mart, supra, is generally cited as establishing the appropriate test for determining entitlement to administrative expense priority. See Amarex, supra, 853 F.2d at 1530; Guaranty National, supra, 90 B.R. at" }, { "docid": "3047750", "title": "", "text": "of Administrative Expenses Section 503 of the Bankruptcy Code governs the allowance of administrative expenses. In pertinent part, section 503(b) states as follows: (b) After notice and a hearing, there shall be allowed administrative expenses ..., including— (1)(A) the actual, necessary costs and expenses of preserving the estate including— (i) wages, salaries, and commissions for services rendered after the commencement of the case; and (ii) wages and benefits awarded pursuant to a judicial proceeding ... as back pay attributable to any period of time occurring after commencement of the case under this tide, as a result of a violation of Federal or State law by the debt- or!!] 11 U.S.C. § 503(b)(1)(A). The WARN Class, as the applicant, bears the burden of establishing its entitlement. Woods v. City Nat. Bank & Tr. Co. of Chicago, 312 U.S. 262, 268, 61 S.Ct. 493, 85 L.Ed. 820 (1941) (claimant seeking compensation from a bankruptcy estate bears the burden). That burden is by a preponderance of the evidence. Dreamwerks Prod. Grp., Inc. v. Party Masters, Inc. (In re Party Masters, Inc.), Case No. 91 B 22949, Adv. No. 92ap00010, 1992 WL 106259, at *23 (Bankr. N.D. Ill. Apr. 23, 1992) (Squires, J.) (“The burden of proving entitlement to an administrative expense is on the claimant and the standard of proof is a preponderance of the evidence,”). In determining how the statute is to be applied and whether the applicant has borne its burden, the court looks at the plain language of the statute. Marek v. Chesny, 473 U.S. 1, 16, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (“[T]he starting point in interpreting statutes and rules is always the plain words themselves[.]”); United States v. Boyles, 57 F.3d 535, 544 (7th Cir. 1995) (“[T]he best way to interpret statutes is to look to their plain language!!]”). In utilizing that plain language approach, it becomes immediately clear that the subsections of 503(b)(1)(A) must be read independently. Because 503(b)(1)(A) introduces a nonexhaustive, demonstrative list, it is not necessary to satisfy each of the two subsections of section 503(b)(1)(A) to be entitled to an administrative claim. See" }, { "docid": "8853750", "title": "", "text": "allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such attorney or accountant. 11 U.S.C. §§ 503(b)(3)(A), (D) and 503(b)(4). W & S’s client, CBT, was a petitioning creditor as provided in section 503(b)(3)(A) and made a substantial contribution under section 503(b)(3)(D). Thus, W & S as CBT’s attorneys have applied for compensation under section 503(b)(4). Priority statutes such as section 503 are to be strictly construed to keep administrative expenses at a minimum so as to preserve the estate for the benefit of the creditors. See In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988); In re O.P.M. Leasing Services, Inc., 23 B.R. 104, 121 (Bankr.S.D.N.Y.1982). The burden of proving entitlement to an administrative expense is on the claimant and the standard of proof is a preponderance of the evidence. Sinclair, 92 B.R. at 788; In re 1 Potato 2, Inc., 71 B.R. 615, 618 (Bankr.D.Minn.1987); In re S & T Industries, Inc., 63 B.R. 656, 657 (Bankr.W.D.Ky.1986). Claims should be granted administrative priority status only if the claim comports with the language and underlying purposes of section 503. In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984); In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 658 F.2d 1149, 1163 (7th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982) (general rule is equality of distribution; deviation must appear in the statute). In order to qualify as “actual” and “necessary” administrative expenses, expenditures must benefit the estate as a whole rather than just the creditor claimant. In re Jartran, Inc., 886 F.2d 859, 871 (7th Cir.1989); In re Jartran, Inc., 71 B.R. 938, 945 (Bankr.N.D.Ill.1987), aff'd, 886 F.2d 859 (7th Cir.1989); see also In re Patch Graphics, 58 B.R. 743, 746 (Bankr.W.D.Wis.1986); In re McK, Ltd., 14 B.R. 518, 520 (Bankr.D.Colo.1981). The language of section 503 continues the rule under the former Bankruptcy Act that a creditor’s right to payment" }, { "docid": "4671568", "title": "", "text": "a properly filed claim results in the allowance of the claim unless evidence to the contrary overcomes it and imposes on the claimant the burden of going forward to prove its claim. According to one court, “the allegations of the proof of claim are taken as true” under Rule 3001(f). In re Holm, 931 F.2d 620, 623 (9th Cir.1991). The prima facie effect articulated in 3001(f) also applies to the secured status of the claim which the Court determines under § 506(a). FDIC v. Union Entities, 83 F.3d 1020 (8th Cir.1996); In re Harrison, 987 F.2d 677, 681 (10th Cir.1993); United States v. Woodway Stone Co., 187 B.R. 916, 918 (WD.Va.1995); In re Elmira Litho, Inc., 174 B.R. 892, 901 (Bankr.S.D.N.Y.1994); In re Stoecker, 143 B.R. 879, 882 (N.D.Ill.1992); In re Alternative Publications, Inc., 186 B.R. 912, 914 (Bankr.S.D.Ohio 1995); In re Robertson, 135 B.R. 350, 352 (Bankr.W.D.Ark.1992); In re Schaumburg Hotel Owner Limited Partnership, 97 B.R. 943 (Bankr.N.D.Ill.1989); In re South Atlantic Packers Assoc. Inc., 30 B.R. 836 (Bankr.D.S.C.1983); In re Lampert, 61 B.R. 785, 787 (Bankr.W.D.Wis.1986); Matter of DeLorean Motor Co., 39 B.R. 157 (Bankr.E.D.Mich.1984). See also, In re Chateaugay Corp., 154 B.R. 29, 32 (Bankr.S.D.N.Y.1993); In re Wells, 51 B.R. 563, 567 (Bankr.D.Colo.1985) (holding that trustee offered evidence of probative value regarding valuation of security equal to the evidence of the proof of claim, thus implying that 3001(f) presumption applies to determination of secured status). Any party seeking to challenge the extent of the secured status of a properly filed proof of claim, therefore, bears the burden of going forward with evidence to rebut the allegations in the proof of claim. III. Application of the law to the cases at bar. No party has presented any evidence to overcome the prima, facie evidentiary effect of the properly filed proofs of claims regarding the secured status of the claims. The brief for each debtor asks the Court to “find that the secured claims are secured to the extent of the amount listed in the collateral value fields in the plan and plan summary and determine the remaining portions" }, { "docid": "8336679", "title": "", "text": "administrative claim, b. Although Lauderhill established that it is entitled to an administrative expense for its post-petition vehicle rentals to the Debtor, it was unable to prove the precise amount of its claim. An applicant for an award of administrative expenses has the burden of proving that an entitlement to the claim sought by establishing that the Debtor’s estate benefited from the applicant’s services to the extent of the claim allowed. See In re Amarex, Inc., 853 F.2d 1526, 1530 (10th Cir.1988); In re FRG, Inc., 124 B.R. 653, 658 (Bankr.E.D.Pa.1991). See also In re Woodstock Associates I, Inc., 120 B.R. 436, 451 (Bankr.N.D.Ill.1990) (burden of proving entitlement to administrative expenses is on claimant, and standard of proof is preponderance of the evidence); Philadelphia Mortgage Trust, supra, 117 B.R. at 827 (“the burden of proving entitlement to a priority is on the person claiming priority”); and In re United States Lines, Inc., 103 B.R. 427, 429 (Bankr.S.D.N.Y.1989) (burden of proof as to substantial benefit rendered to estate is on applicant for administrative-expense claim, and entitlement to award must be established by preponderance of evidence). The administrative claimant must therefore prove both (1) that the expense was “actual” and “necessary;” and (2) the reasonable value of the expense. See also, Zagata, supra, 893 F.2d at 627. We conclude that, largely because of circumstances beyond its control, Lauderhill was unable to prove the “reasonable value” of its administrative claim at the hearing on the Applications. The standard for determining the “reasonable value” of an administrative expense was set forth by this court in Grant Broadcasting, supra, 71 B.R. at 896-900. There, the suppliers of programming to a Chapter 11 debtor television station requested that they be granted an administrative claim for the entire amounts due under certain licensing contracts between them and the debtor. Id. at 893. The debtor opposed this request and argued that the suppliers were entitled to payment for only the programming that the debtor had actually used on the air. Id. at 894. This court, in addressing the programmers’ motion, discussed at length the two lines of cases" }, { "docid": "10193037", "title": "", "text": "the plan if they knew about them, creditors lack standing to challenge provisions of a plan that do not affect them. Fed.R.Bankr.Proc. 3020(b); In re B. Cohen & Sons Caterers, Inc., 124 B.R. 642 (Bankr.E.D.Pa.1991), appeal dismissed, 908 F.2d 963 (3d Cir.1990). CONFIRMATION 10. Section 1129 establishes the requirements for confirmation. This court follows the majority view that proponents of plans must prove the requirements of 1129(a) by a preponderance of the evidence. E.g. In re MCorp Financial, 137 B.R. 219, 225 (Bankr.S.D.Tex.1992), appeal dismissed, 139 B.R. 820 (S.D.Tex.1992); Home Savings Ass’n v. Woodstock Assocs. I, Inc. (In re Woodstock Assocs. I, Inc.), 120 B.R. 436, 453 (Bankr.N.D.Ill.1990); but see In re Briscoe Enterprises Ltd., II, 138 B.R. 795, 804-05 (Bankr.N.D.Tex.1992) (discussing case law and indicating that appropriate standard is clear and convincing evidence). 11. Courts have held that under section 1129(b), the cramdown provision, the burden is clear and convincing evidence. Briscoe, 138 B.R. at 804; MCorp, 137 B.R. at 225. 12. The court has a mandatory, independent duty to review plans and ensure they comply with the requirements of section 1129, Williams v. Hibernia Nat’l Bank (In re Williams), 850 F.2d 250, 253 (5th Cir.1988), and the court must consider the plan in light of the facts and circumstances of the case. In re D & F Construction, 865 F.2d 673, 675 (5th Cir.1989). 13. After considering the plan in accordance with these requirements, the court concludes the plan should be confirmed. Compliance With Applicable Provisions of the Code, 11 US. C. sec. 1129(a)(1), (2) 14. The plan conforms to the applicable provisions of Chapter 11, and the plan proponent also has complied with the applicable provisions. 11 U.S.C. sec. 1129(a)(1), (2). Under sections 1129(a)(1) and (2), the court must review the Bankruptcy Code to ascertain if the Debtor and the proponents complied with other Bankruptcy Code provision. The provisions that generally are involved include estimation of claims under section 502, classification of claims under section 1122(a), unequal treatment of claims under section 1123(a)(1), and a showing of how the plan will be implemented under section 1123(a)(5). 15." }, { "docid": "15261433", "title": "", "text": "its validity and amount, Federal Rule of Bankruptcy Procedure 3001(f); In re Kham & Nate’s Shoes, No. 2, Inc., 97 B.R. 420, 424 (Bankr.N.D.Ill. 1989); In re Fogelberg, 79 B.R. 368, 372 (Bankr.N.D.Ill.1986), unless the debtor or other party in interest objects. 11 U.S.C. § 502(a). The prima facie validity of a properly filed proof of claim places the burden on the objector to introduce evidence rebutting this presumption. In re Fidelity Holding Co., 837 F.2d 696, 698 (5th Cir.1988); In re Schaumburg Hotel Owner Ltd. Partnership, 97 B.R. 943, 950 (Bankr.N.D.Ill. 1989); In re Chapman III, 132 B.R. 132, 143 (Bankr.N.D.Ill.1991). Filing an objection to the claim without more is insufficient to overcome the rebuttable presumption. In re Glenn, 100 B.R. 763, 766 (Bankr.W.D.Pa. 1989). Once the objector has produced some evidence disputing the validity of a claim, the burden shifts to the claimant. In re Missionary Baptist Foundation, 818 F.2d 1135, 1143-1144 (5th Cir.1987); In re Lampert, 61 B.R. 785, 787 (Bankr.W.D.Wis.1986). The Creditor as the claimant, not the Debtor as objector, bears the ultimate burden of establishing a valid claim by a preponderance of the evidence. In re All-American Auxiliary Assoc., 95 B.R. 540, 544-545 (Bankr.S.D.Ohio 1989); In re Farmers’ Co-op. of Arkansas & Oklahoma, Inc., 43 B.R. 619, 620 (Bankr. W.D.Ark.1984). Norman’s testimony regarding excess credits issued in error by the Creditor to the Debtor was not based on any personal knowledge by Norman about how the amount was computed and exactly what it was for. He testified the amounts owed are different than those contained in the filed proof of claim. See Exhibit No. 23. The proof of claim references an amount claimed due from a previous statement which is not attached, nor explained by any testimony from the Creditor. On rebuttal, Blankenship testified that he had not previously seen the filed proof of claim, and that it is unsupported by underlying documentation establishing such claimed liability, and thus was disputed by the Debtor. On such evidence, the Court finds that the Creditor has not carried its burden to prove the claimed debt and the" }, { "docid": "20619778", "title": "", "text": "category of a “core proceeding.” Therefore, subject matter jurisdiction exists in this Court to resolve the pending dispute. DISCUSSION The movant bears the burden of proof in seeking payment of an administrative claim. In re Worldwide Direct, Inc., 334 B.R. 112, 120 (Bankr.D.Del.2005); In re Philadelphia Mortgage Trust, 117 B.R. 820, 827 (Bankr.E.D.Pa.1990); see also In re O’Brien Envtl. Energy, Inc., 181 F.3d 527, 533 (3d Cir.1999) (holding that the burden of proof is on the claimant); In re Moore, 109 B.R. 777, 780 (Bankr.E.D.Tenn.1989) (the burden to demonstrate that the claim is an administrative claim is upon the movant); Russell, Bankruptcy Evidence Manual, 2006 Ed., § 301.54A. Moreover, the movant must prove it is entitled to an administrative expense award by a preponderance of the evidence. In re Worldwide Direct, Inc., 334 B.R. at 120; In re TransAmerican Natural Gas Corp., 978 F.2d 1409, 1416 (5th Cir.1992). In order to recover attorney fees and other expenses under Section 506(b), a creditor bears the burden of proving entitlement by establishing: (1) that it is ov-ersecured in excess of the fees requested; (2) that the fees are reasonable; and (3) that the agreement giving rise to the claim provides for attorney fees. 11 U.S.C. § 506(b); In re Schriock Construction, Inc., 104 F.3d 200, 201 (8th Cir.1997); In re Green Valley Beer, 281 B.R. 253, 255 (Bankr.W.D.Pa.2002); In re Oliver, 183 B.R. 87, 92 (Bankr.W.D.Pa.1995). Furthermore, the burden of proof is on the party seeking allowance of attorney fees. That party is required to show “reasonableness” by a preponderance of the evidence, and among other things, by providing the court with detailed descriptions of the services rendered, supporting documentation, as well as any appropriate, other evidence necessary for the Court to make a favorable determination on the application for payment. In re Foertsch, 167 B.R. 555, 562 (Bankr.D.N.D.1994); 5 Collier’s on Bankruptcy, ¶ 506.04[3][a][ii] (Lawrence P. King ed., 2006). The creditor must also show by a preponderance of the evidence that the fees were necessary to protect the creditor’s interests. In re Toy King Distributors, Inc., 256 B.R. 1, 187 (Bankr.M.D.Fla.2000);" } ]

[ { "docid": "22401796", "title": "", "text": "Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970). We agree with that construction of the Act. Cf. Griggs v. Duke Power Company, 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158. The district court’s conclusion that defendant’s policy was “deliberate” was justified by the record and satisfies Section 706(g). The District Court Had Jurisdiction to Provide Relief to Individuals Similarly Situated As part of its decree, the district court retained jurisdiction to consider the possibility of extending relief to other stewardesses similarly discharged by United’s enforcement of its no-marriage rule. Accordingly, the court ordered plaintiff to submit amended or supplemental pleadings, or suggestions on that matter, and gave United leave to respond. United attacks this portion of the decree as inconsistent with the policy of Rule 23 of the Federal Rules of Civil Procedure. It urges that the “class” aspect of a Title VII action must be established prior to judgment on the merits. We need not anticipate and resolve the array of issues which may arise in the determination of the propriety of class relief. In its present posture, this case presents the bald question of the court’s power to grant such relief where justice requires such action. In our opinion, Rule 23 to the contrary notwithstanding, the district court possesses such power in Title VII cases. The vindication of the public interest expressed by the Civil Rights Act constitutes an important facet of private litigation under Title VII. In Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969), Judge Kerner recognized that such a suit is necessarily a class action “as the evil sought to be ended is discrimination on the basis of a class characteristic, i. e., race, sex, religion or national origin.” See also Jenkins v. United Gas Corporation, 400 F.2d 28, 33 (5th Cir. 1968). At stake, therefore, are the interests of the other members of that class, and the court has a special responsibility in the public interest to devise remedies which effectuate the policies of the Act as well as afford private relief to the individual employee instituting the" } ]

[ { "docid": "5321752", "title": "", "text": "as frequently as set forth under COA and CWLA standards — satisfy Rule 23(b)(2) and 65(d)’s requirements as explained in Shook II. We granted Defendants’ timely request for permission to file an interlocutory appeal of the district court’s order granting class certification. Defendants argue the district court abused its discretion by erroneously finding the proposed class satisfied Rule 23(a)’s commonality and typicality requirements. They also assert the district court erred in concluding the proposed class satisfied Rule 23(b)(2)’s “generally applicable” and cohesiveness requirements. Exercising jurisdiction under 28 U.S.C. § 1292(e) and Fed.R.Civ.P. 23(f), we find no abuse of discretion and affirm the district court’s order. “We review the standard the district court used in making its Rule 23 determination de novo and the merits of that determination for an abuse of discretion.” Vallario v. Vandehey, 554 F.3d 1259, 1264 (10th Cir.2009); see also Shook v. El Paso County, 386 F.3d 963, 967 (10th Cir.2004) (“Shook I”). Recognizing the considerable discretion the district court enjoys in this area, we defer to the district court’s certification ruling if it applies the proper Rule 23 standard and its “decision falls within the bounds of rationally available choices given the facts and law involved in the matter at hand.” Vallario, 554 F.3d at 1264. We reverse for an abuse of discretion when the district court bases its decision on either a clearly erroneous finding of fact or conclusion of law or by manifesting a clear error of judgment. Id. I. “ ‘In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.’ ” Shook I, 386 F.3d at 971 (quoting Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982)). A district court may certify a class if the proposed class satisfies the requirements of Rule 23(a) and the requirements of one of the types of classes in Rule 23(b). The party seeking class certification bears the burden of proving Rule 23’s requirements are satisfied." }, { "docid": "23221893", "title": "", "text": "be “strikingly unfair” in some cases and that the Supreme Court has plainly identified as a principal concern of the draftsmen of the amended rule. But in the portions of the rule referring to (b)(1) and (b)(2) class actions, the notice requirement and the language describing the form of the judgment are significantly different. The rule does not mandate advance notice to the absent class members in all such cases; the rule does not provide that they be given an opportunity to request exclusion from the class; and the language of subparagraph (c)(3) would seem to permit the entry of a single order determining both the merits and the identity of the members of the class. Certainly there is nothing in the rule expressly depriving the district court of power to enter such an order. This consideration of the text of the rule leads us to three conclusions, none of which is decisive in this case. First, we are persuaded that the order ultimately entered by the district court on November 15, 1974, which purports simultaneously to define the class and to adjudicate the merits, would have been an acceptable judgment if it had been entered promptly after the action was commenced. Second, we do not think that mere delay in the entry of an otherwise acceptable order — assuming no resultant prejudice — would deprive the court of the power to enter such order even though the delay was inconsistent with the command to act “as soon as practicable.” Third, in this case when the three-judge district court entered its original order on the merits, it plainly did not comply with Rule 23. Not only did it fail to reach the class issue as soon as practicable, as required by subparagraph (c)(1), but its judgment also omitted the description of the class members as required by subparagraph (c)(3). These preliminary conclusions lead us to the question whether the court’s power simultaneously to decided the merits and to certify the case, as a class action survived the entry of the original erroneous judgment and the subsequent appeal. We have concluded" }, { "docid": "7632741", "title": "", "text": "deciding whether or not to join the suit. This court in the recent Jimenez opinion indicated that, in some cases, the final certification need not be made until the moment the merits are decided, (emphasis in original). Since the class allegations in that case met the requirements of subdivision (b)(2) of Rule 23 rather than subdivision (b)(3), the court thought it fair to infer that the timing of certification in the former kind of class suit could differ from the timing required in the latter. Because the allegations met (b)(2) requirements, the court was able to avoid concluding that non-certification required automatic reversal. Significantly, however, Jimenez plainly stated that a reversal would almost certainly have been required in the class action had it been maintained under subdivision (b)(3). In the instant appeals, the class allegations fell under subdivision (b)(3). Moreover, at least one of the named plaintiffs formally moved for certification of the suit as a class action. We conclude that under the mandatory language of Rule 23(c)(1) and our prior decisions, the district court could not, should we remand the present actions for entry of Rule 56(b) summary judgments, proceed to make a delayed class certification. Thus, thére is no way under the federal rules of procedure for the defendant air carriers to secure the protection of res judicata. They must rest content with the stare decisis protection. We cannot countenance a patent violation of Rule 23. We have examined the other contentions raised by appellants, and we find them meritless. Accordingly, we modify the orders of dismissal, and, treating them as summary judgment that the named, individual plaintiffs are barred from securing restitution from the defendant air carriers, we affirm. Affirmed as Modified. . No separate docket number has been assigned in the appeal Air Travelers Association, et al., v. Air West, Inc., et al., which was docketed below as C-785. The February 12, 1974, notice of appeal filed in Alan Weidberg, et al., v. American Airlines Inc., et al., Appeal No. 74-1246, clearly stated that Air Travelers Association, et al., was appealing from the January 14, 1974," }, { "docid": "23221894", "title": "", "text": "simultaneously to define the class and to adjudicate the merits, would have been an acceptable judgment if it had been entered promptly after the action was commenced. Second, we do not think that mere delay in the entry of an otherwise acceptable order — assuming no resultant prejudice — would deprive the court of the power to enter such order even though the delay was inconsistent with the command to act “as soon as practicable.” Third, in this case when the three-judge district court entered its original order on the merits, it plainly did not comply with Rule 23. Not only did it fail to reach the class issue as soon as practicable, as required by subparagraph (c)(1), but its judgment also omitted the description of the class members as required by subparagraph (c)(3). These preliminary conclusions lead us to the question whether the court’s power simultaneously to decided the merits and to certify the case, as a class action survived the entry of the original erroneous judgment and the subsequent appeal. We have concluded that mere delay in making a class certification, even though contrary to the mandate to act as soon as practicable, does not deprive the district court of the power to enter an otherwise proper order. Nor do we believe that the entry of an erroneous judgment, subsequently vacated on appeal, necessarily terminated the court’s power to entertain a class action. In this case the delay was aggravated by the error, but, if we can confine inquiry to the question whether the court had power to grant class relief after the Supreme Court had decided the merits, we are satisfied that such power survived the violation of the rule. Cf. Sprogis v. United Air Lines, 444 F.2d 1194, 1201-1202 (7th Cir. 1971). We hold therefore that the district court did not exceed its jurisdiction by granting relief to the class on November 15, 1974. It may nevertheless have been reversible error to grant such relief at that time. We turn to that question. IV We start by noting that the prerequisites to a class action described" }, { "docid": "11291646", "title": "", "text": "or implementation of the UPS policies and practices alleged in this action to violate the ADA. Id. at 246. As to relief, the court determined plaintiffs’ claims for compensatory and punitive damages could not be certified for classwide treatment under Rule 23(b)(2), but it withheld judgment on plaintiffs’ back-pay claims, concluding that “[pjlaintiffs ... may be able to seek back pay or other equitable relief for individual class members if there is a protocol for identifying those monetary damages which sets forth the objective standards to be utilized in determining the amount of those damages in a way that does not require additional hearings on individualized circumstances.” Id. at 245. The court also noted that, having certified the class, it would revisit at a subsequent status conference with the parties the issue of bifurcating the proceedings in accordance with the two-stage evidentiary framework mentioned supra (having previously denied without prejudice plaintiffs’ motion for bifurcation, subject to the court’s decision on class certification). Id. at 244-45. UPS petitioned for permission to appeal the grant of certification under Fed.R.Civ.P. 23(f), which we granted. II. Wé have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1292(e) and Fed.R.Civ.P. 23(f). “We review a class certification order for abuse of discretion, which occurs if the district court’s decision ‘rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.’ ” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir.2008) (quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, 259 F.3d 154, 165 (3d Cir.2001)). “[WJhether an incorrect legal standard has been used is an issue of law to be reviewed de novo.” Id. (alteration in original) (internal quotation marks omitted). “Class certification is proper only ‘if the trial court is satisfied, after a rigorous analysis, that the prerequisites’ of Rule 23 are met.” Id. at 309 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). “Because the decision whether to certify a class ‘requires a thorough examination of the factual and" }, { "docid": "23221896", "title": "", "text": "in Rule 23(a) are clearly met in this case and that the allegations of the complaint satisfy the terms of subparagraph (b)(2). We have no doubt that a timely decision of the issue would have resulted in a certification that the case could be maintained as a class action. It is also clear that reversal would almost certainly be required if this were a class action maintained under subdivision (b)(3) of the rule. We read the Supreme Court’s recent opinions in Eisen, and American Pipe as rather plainly requiring that conclusion. But in Eisen the court carefully noted that it was there concerned only with the notice requirement applicable to class actions under subdivision (b)(3), a requirement which is inapplicable to class actions for injunctive or declaratory relief under subdivision (b)(2). That note implies that it may be appropriate to examine the reasons for the rule before interpreting it as mandating automatic reversal in a (b)(1) or (b)(2) case. The rule is largely concerned with the problem of one-way intervention. If unnamed members of the class may await the outcome on the merits before deciding whether to be excluded from the class, they will receive the benefits of a favorable judgment but not the burden of being bound by an unfavorable judgment. The precedential effect of the adverse judgment in the class action would be a hurdle to overcome, but not necessarily an insurmountable obstacle because the same issue might bt appraised differently in a different forum. Moreover, successive suits by different members of the class would defeat the purpose of the rule to eliminate the judicial waste involved in processing repetitious litigation of the same issue. There is also a risk that the failure to certify may result in a dismissal of an entire case if the claim of the named plaintiff should become moot. Finally, the failure to certify may make it impossible for the parties to conduct meaningful settlement negotiations because of uncertainty with respect to both the magnitude of the contingent liability and the burdens of going forward with a trial. Without doubt, orderly class action" }, { "docid": "23173737", "title": "", "text": "final until the remedy of attorneys fees has been addressed and decided. We hold the district court’s second amended judgment awarding attorneys fees and rescinding its previous class certification order to be the final order in this action under 28 U.S.C. § 1291. The parties’ cross-appeals are therefore timely. II. Class Certification The district court has the power to enter or modify an order until it renders a final judgment. See, e. g., Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118 (1936); Director of Revenue v. United States, 392 F.2d 307, 308-310 (10th Cir. 1968); Suggs v. Mutual Benefit Health & Accident Association, 115 F.2d 80, 82 (10th Cir. 1940). Since the district court’s final judgment was not entered until October 25, it had jurisdiction to certify the plaintiff class on August 11. Thus, the issue is not of power but of propriety: whether Fed.R.Civ.P. 23 permits formal class certification after a decision on the merits under the circumstances of this case. Rule 23(c)(1) provides that as soon as practicable after commencement of suit brought as a class action, the court shall determine by order whether it is to be so maintained. While the words “as soon as practicable” have no hard definition, they call for “as early a determination as the circumstances permit.” Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 274 (10th Cir. 1977). Due to the unusual circumstances in this case, we conclude that the post-judgment certification did not violate Rule 23(c)(1). In October 1974, the complaint was filed by plaintiff Gurule as a class action seeking injunctive relief for himself and for the class he represents. Prior to filing an answer, defendants requested an opportunity to settle the central matter of classification of prisoners. The court granted a delay to permit discussions concerning classification procedures. Thereafter, defendants and plaintiffs engaged in “an incredible and interminable series of negotiations, in trying to come up with a classification policy.” Rec., vol. VI, at 31. In March 1976, plaintiffs were granted an order enjoining defendants from “reclassifying or transferring plaintiff Walker,” rec., vol." }, { "docid": "23221885", "title": "", "text": "and that he has paid the named plaintiffs back to the date of their original application, as ordered by the district court. The amount in dispute therefore includes claims which were denied by the Secretary after the litigation commenced on June 15, 1971, and which accrued prior to June 19, 1974. II The Supreme Court’s recent decision in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), reminds us to confront at the outset the question whether the district court had jurisdiction of the class aspects of this litigation. As the Court held in Salfi, 42 U.S.C. § 405(g) is the only statute authorizing the district court to grant relief from a denial of benefits under the Social Security Act. The language of the statute confers authority to affirm, modify or reverse a decision of the Secretary, but contains no suggestion that a reviewing court is empowered to enter an injunctive decree whose operation reaches beyond the particular applicants before the Court. 95 S.Ct. 2457, note 8. Nevertheless, as we have already noted, the Court’s acceptance of appellate jurisdiction in this very case was a holding, albeit unarticulated, that such jurisdiction does exist. Moreover, if the Court did not believe a class action could ever be maintained under the Social Security Act, there would have been no need to analyze the shortcomings of the particular class which Salfi represented. Unquestionably § 405(g) conferred jurisdiction on the district court to hear a timely claim by each individual member of the class; we think Rule 23 provides a procedure by which such power may be exercised in a single appropriate proceeding. Unnamed, as well as named, plaintiffs are “applicants before the court” in a properly maintained class action. • In the Salfi case, the Court held that § 405(g) did not provide jurisdiction over the claims of the unnamed members of the class because they had not satisfied one of the three statutory requirements for judicial review of an adverse decision by the Secretary, specifically, the requirement of a final decision by the Secretary. The complaint was deficient" }, { "docid": "12344101", "title": "", "text": "conferred right to an interlocutory appeal from the refusal of an injunction. We believe, then, that we have both the power and the duty to review the District Court’s class-certification order as well as its order on the motion for a preliminary injunction. That court expressly rejected the motion solely “in light of” its contemporaneous denial of class certification. Without review of the determination on class certification, effective review of the order on the injunction request would be seriously impaired. We have, then, a matter — class certification — “inextricably bound up with the remedial decision” — the ruling on preliminary injunc-tive relief — which is properly before us under Section 1292(a)(1). We turn accordingly to an examination of the District Court’s action on Wagner’s motion for class certification. III. Class Certification A. General Considerations Without a doubt, the District Court is “uniquely well situated” to make rulings on the propriety of class certification. Nonetheless, it remains our responsibility to review those rulings carefully and to rectify any erroneous application of legal criteria and any abuse of discretion. With this limited role in mind, we proceed to consider the District Court’s rejection of Wagner’s motion. It is readily apparent that a decision on class certification cannot be made in a vacuum. While, of course, a court does not possess “any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action,” it is evident that some inspection of the circumstances of the case is essential to determine whether the prerequisites of Federal Civil Rule 23 have been met. Necessarily, the court must examine both the claims presented and the showing in support of class certification for their adherence to the requirements of Rule 23. Rule 23 inquiries in the context of Title YII racial discrimination suits have presented courts with a peculiar set of problems. These stem from the fact, as stated by the Supreme Court, that “racial discrimination is by definition class discrimination.” Recognition of this fact has left uncertain the degree of permissiveness tolerable" }, { "docid": "11407930", "title": "", "text": "summary judgment for defendants. Without discussing jurisdiction to review the. denial of class certification, and with no necessary connection between certification and the issue decided on summary judgment, we remanded the case, inter alia, for reconsideration of the class certification issue. Id. at 960-61; see also id. at 964-65 (Scalia, J., concurring 'in part and dissenting' in part) (reviewing denial of class certification but finding that denial was proper). On the other hand, in an earlier case, we declined to entertain a conditional cross-appeal of a class certification order. McCarthy v. Kleindienst, 562 F.2d 1269, 1276 (D.C.Cir.1977). In McCarthy, appellants, had challenged the denial of a motion to intervene as well as the denial of class certification. After vacating the district court’s denial of the motion to intervene, we held the “appeal of the denial of class certification [to be] essentially- interlocutory with respect to [appellants’] continued participation in the lawsuit. We therefore find it inappropriate for decision at this time.” 562 F.2d at 1276. Cf. Gray Panthers v. Schweiker, 716 F.2d 23, 39 (D.C.Cir.1983) (refraining from deciding whether prior failure to cross-appeal class certification issue deprived district court of power under Rule 23(e)(1) to redefine the class on remand). While the district court in the instant ease had denied a preliminary injunction in 1979, it had also certified the class and entered a final judgment in favor of the defendant. See De Medina, 686 F.2d at 1001. Class certification was thus not necessarily bound up with the 1982 appeal which focused on the trial court’s dismissal on the merits of plaintiffs’ prima facie case. After we reversed the trial court and remanded the case; class certification, once again, became subject to modification by the trial court during proceedings on remand. Therefore, one cannot confidently say whether, upon reversing the trial court’s merits dismissal in 1982, we would have entertained a conditional cross-appeal of the class certification order at that time. While the Ninth Circuit would have counseled against such a review, the Seventh Circuit apparently would have considered the appeal. Following our precedents of Wagner and Fink, we would" }, { "docid": "23403687", "title": "", "text": "statute of limitations, even if the conditional certification equitably tolled the time for filing a charge. Likewise, those who did not file individual charges and nevertheless forge ahead with individual actions despite the district court’s erroneous holding may find their actions defeated on a law of the case theory. In either event, they would be deprived of their right to appeal a clear legal error. The situation is no different for those who file individual suits if we reverse the decertification order and reinstate the class. In that case, those who accepted the district court’s ruling and did not file individual actions may well be protected. Those who filed individual actions and suffered an adverse final judgment would be barred from rejoining the class. Finally, the holding that timely filing of individual charges was necessary to the maintenance of individual actions by opt-in class members when the class is decertified meets the most stringent test for mandamus. It is beyond the district court’s jurisdiction. A court which rejects a class as improper has no power to bind class members not properly before it. The power to judge the merits of their individual claims lies with the forum in which those claims are presented. Therefore, with respect to the district court’s holding that an individual’s failure to timely file an administrative charge is properly considered in deciding whether opt-in class members are “similarly situated” under 29 U.S.C.A. § 216(b), all the requirements for mandamus are met. A district court has no power or jurisdiction to rule on the merits of the claims of individual members of a putative opt-in class when it denies class certification. This is clear legal error. There is no other adequate remedy. Appellate jurisdiction over the issue may be lost. The language of the notice concerning the necessity for administrative filing and the mingling of that issue with the tolling of the statute of limitations is confusing and has elements of procedural unfairness. We therefore have power under 28 U.S.C.A. § 1651 to issue a writ of mandamus to the district court directing it to correct this" }, { "docid": "22177867", "title": "", "text": "“ripe for summary judgment” then it might be proper for a judge to consider a motion for summary judgment prior to considering a motion for class certification. Cowen, 70 F.3d at 941 (citations omitted). Where this situation occurs, if the court determines that the named plaintiffs’ claims lack merit, such a decision “ordinarily, though not invariably, ... disqualifies the named plaintiffs as proper class representatives,” thus resolving the issue of class certification. Cowen, 70 F.3d at 941 (citations omitted). As noted by the district court, plaintiffs requested and were granted numerous stays with respect to the summary judgment motions before the court. In response to plaintiffs’ frustration with the delayed consideration of them class certification motion, the district court simply noted that the plaintiffs’ actions caused the delay. Yet this response obscures the fact that it was the district court’s decision to consider the summary judgment motions before the class certification motion that led to the delayed consideration of the latter. Indeed, this is why it is preferable to review a motion for class certification first; a quick disposition on the merits is often not possible. Nonetheless, “[wjhile we agree that it is the better policy for the district court to dispose of a motion for class certification promptly and before ruling on the merits of the case, the failure to follow this preferred procedure does not necessarily amount to reversible error.” Mira, 107 F.3d at 475. We must thus examine whether the delay in ruling was such that it rose to reversible error. The denial of class certification was premised on the district court’s finding that the named plaintiffs lacked standing to seek injunctive relief, a finding partially linked to the fact that Chavez had not returned to Illinois and had not been stopped since the original stop in 1993. Plaintiffs allege that, if the district court had ruled on class certification as soon as practicable, the mootness of Chavez’s claim would not have prevented the class members from proceeding. Yet, even if this were true, the class would not have prevailed on the merits. The plaintiffs’ litigation strategy" }, { "docid": "12008726", "title": "", "text": "have been offered no evidence indicating that there are exceptional circumstances in this case that justify the grant of equitable relief. We therefore conclude that the District Court properly limited the relief in this case to the award of VRBs. III. CLASS ACTION ISSUES On September 28, 1973, in the same order granting plaintiffs’ motion for summary judgment, the District Court certified this suit as a class action under Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure. The Government argues on this appeal that the District Court erred in certifying this suit as a class action because it did not make its class action determination “as soon as practicable after the commencement” of the action as required by Rule 23(c)(1). The Government also presses the argument that due process required personal prejudgment notice to the easily identifiable members of this Rule 23(b)(1) class, and that the failure of the District Court to order such notice consequently requires reversal of the class action certification. Plaintiffs, who had asked the District Court to order the Government to disclose the names and addresses of members of the class, challenge on appeal the refusal of the District Court to honor that request. A. The Requirements oí Rule 28(c)(1) Rule 23(c)(1) provides: As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. The Government argues that the District Court’s class action certification must be reversed as inconsistent with Rule 23(c)(1) in that the District Court “did not make a class action determination until the entry of final judgment, some six months after the action commenced.” Brief at 25-26. Clearly, a District Court cannot simultaneously certify an action under Rule 23(b)(3) and enter a final judgment in the action since Rule 23(c)(2) expressly re quires prejudgment notice to the absent members of a Rule 23(b)(3) class concerning, among other things, their opportunity to “opt out” of the" }, { "docid": "22754387", "title": "", "text": "remedied on appeal without great difficulty. The district court’s equitable remedy could at that time be expanded or otherwise modified to include all those improperly excluded from the class. A somewhat different situation arises if the number of class members who opt out is so great that the district judge denies class certification on grounds of numerosity. Where this occurs, the order would be appealable under 28 U.S.C. § 1292(a)(1) because its effect would be to deny the broad injunctive relief which Bauman sought on behalf of the class. Price v. Lucky Stores, Inc., supra, 501 F.2d 1177. Thus, whether the effect of the order is to reduce the size of the class or to foreclose class certification completely, there is no damage to Bauman which is not correctable on appeal. We recognize, of course, that any error in the district court’s order may promote delay and the additional expenditure of judicial and private- resources. Nevertheless, the orderly and efficient administration of justice is not promoted by using the extraordinary writs to correct ordinary errors or to serve as an alternative to ordinary appeals. See Will v. United States, supra, 389 U.S. at 98 n. 6, 104, 88 S.Ct. 269. Importantly, for our analysis of Bauman’s petition, the Supreme Court has cautioned “that the writ is not to be used as a substitute for appeal . even though hardship may result from delay and perhaps unnecessary trial . . .” Schlagenhauf v. Holder, supra, 379 U.S. at 110, 85 S.Ct. at 238 (citations omitted). 3. Is the district court’s order clearly erroneous as a matter of law I This question requires analysis of three separate aspects of the district court’s order: (1) the district court’s use of its Rule 23(d)(2) discretionary power to notify the class to determine whether Rule 23(a) prerequisites to a class action are satisfied; (2) the inclusion in the ordered notice of opt-out provisions; and (3) the use of notice to members of a Rule 23(b)(2) class to measure adequacy of class representation. This analysis in turn can be substantially furthered by a careful determination of" }, { "docid": "23221890", "title": "", "text": "filed by the class members provided such notice to the Secretary. Second, since by hypothesis the plaintiffs’ claims were denied solely for an impermissible reason, we think it appropriate to resolve a close question in their favor. And third, the most realistic interpretation of the action of the three-judge court is that the majority simply saw no need to rule on the class issue in view of its holding on the merits. We therefore hold that the district court acquired jurisdiction of the class action when the complaint was filed, and that the claims were not thereafter barred by limitations. The question we must now consider is whether the failure to comply with Rule 23 deprived the district court of the power to grant class relief. Ill Rule 23(c)(1) provides: (1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. Unlike other provisions of Rule 23 which differentiate between class actions brought under subparagraphs (b)(1) and (2) and those brought under subparagraph (b)(3), this requirement is applicable to all class actions. The rule unquestionably allows the district judge to exercise his discretion in deciding upon the earliest “practicable” time to determine whether the case is to be processed as a class action; but the text certainly implies, even if it does not state expressly, that such a decision should be made in advance of the ruling on the merits. For the explicit permission to alter or amend a certification order before decision on the merits plainly implies disapproval of such alteration or amendment thereafter. On the other hand, that degree of flexibility permitted before the merits are decided also indicates that in some cases the final certification need not be made until the moment the merits are decided. From an examination of the remainder of Rule 23, it is fair to infer that the timing of the certification may well be" }, { "docid": "11659348", "title": "", "text": "expense of notifying members of a class under Rule 23(b)(2) must be borne by the plaintiffs in the first instance, regardless of the probable outcome on the merits. The case at bar presents a somewhat different question than was decided in Per- itz. We ruled initially on November 29, 1972 that the action would proceed on behalf of a class, thereby satisfying Rule 23(c)(1). Neither party made any move to notify the members, and instead, on October 4, 1973, plaintiff filed a motion for summary judgment on liability which was opposed on its merits by the defendant. The motion was decided partly in favor of the plaintiff and partly in favor of the defendant, and thereafter on March 24, 1975, defendant obtained the entry of a judgment for damages in favor of the individual plaintiff. Since Eisen had been decided by that time, the court ordered the plaintiff to notify the class members of the pendency of the action, and this was done at his expense by a notice mailed on or about May 19, 1975. Neither the summary judgment on liability nor the judgment for the individual plaintiff was mentioned in the notice. Approximately 4,000 members of the class of 99,000 opted out, thereby readying the case for a money judgment in favor of the remaining members. Rule 23(c)(1) and (2) do not require prompt notification to members of the class but merely require that the class be certified or defined as soon as practicable. The certification can be amended at any time before a decision on the merits and, under some circumstances, even thereafter. In the Seventh Circuit Court of Appeals case of Jimenez et al. v. Weinberger, 523 F.2d 689 (7th Cir. 1975), the court held that determination of the appropriate class and notification of its members could be made simultaneously with a decision on the merits, in an action seeking merely injunctive or declaratory relief under Rule 23(b)(2). A judgment on the merits, originally entered by the trial court, was reversed and remanded by the Supreme Court and subsequently the trial court entered a new judgment" }, { "docid": "23360275", "title": "", "text": "of uncertainty into a relatively settled area of the law. It would force an appellee to file a cross-appeal whenever any doubt exists as to whether a court of appeals will consider arguments supporting the judgment in his favor, and, more significantly, would punish him for failing to do so. In addition, this approach may be criticized for widening the power of the judiciary to engage in unprincipled decisionmaking. This is so because it would expand the reach of a “rule of practice” requiring cross-appeals and then would selectively waive its application when any particular panel deems it to be in the interest of justice. II. CLASS CERTIFICATION Turning to the class certification issue presented in this case, I am in basic agreement with the majority opinion on this subject, but consider it important to add two caveats. First, it should be emphasized that we do not hold that the trial court committed reversible error when it certified the class at the outset of the litigation. Rule 23(c) directs the trial judge to determine “[a]s soon as practicable after the commencement of an action” whether it is to be maintained as a class action, but also permits the judge to modify his order before the decision on the merits. In keeping with that provision, the trial court ruled at a relatively early stage of the lawsuit that the allegations set forth in Scott’s complaint may warrant class action treatment. The judge was cognizant of the possibility that Scott might ultimately fail to satisfy the numerosity or adequate representation requirements. However, he ascertained that the appropriate course was to certify the class, subject to reexamination if subsequently developed facts cast doubt on the propriety of that ruling. This initial decision was, in my view, neither erroneous as a matter of law nor an abuse of discretion. Rather, as the majority makes clear, the facts that emerged in the course of the trial demonstrated that the numerosity and adequate representation prerequisites were not satisfied, and accordingly, it was appropriate that the class be decertified when that situation became apparent. Second, as I" }, { "docid": "23403686", "title": "", "text": "an opt-in class action will be hampered, and the Congressional intent to allow class actions in cases involving systemic age discrimination will be frustrated. Accordingly, although we recognize the historical analogy of the opt-in class action to permissive joinder and intervention, we conclude that the intent of Congress in enacting § 16(b), as expressed in its language and legislative history, is unlikely to be adequately realized by considering whether each member has timely filed an administrative charge pursuant to 29 U.S.C.A. § 626(d), in deciding whether to continue class certification. The second prerequisite for mandamus is also present with respect to the notice, in that no other adequate means of obtaining relief is available. If the district court’s decertification of the class is upheld on appeal from a final order in Lusardi’s case, claimants who did not file timely charges with the EEOC and were deterred from filing individual actions by the statement in the notice or the holding in the opinion that timely individual filing was required are likely to be barred by the statute of limitations, even if the conditional certification equitably tolled the time for filing a charge. Likewise, those who did not file individual charges and nevertheless forge ahead with individual actions despite the district court’s erroneous holding may find their actions defeated on a law of the case theory. In either event, they would be deprived of their right to appeal a clear legal error. The situation is no different for those who file individual suits if we reverse the decertification order and reinstate the class. In that case, those who accepted the district court’s ruling and did not file individual actions may well be protected. Those who filed individual actions and suffered an adverse final judgment would be barred from rejoining the class. Finally, the holding that timely filing of individual charges was necessary to the maintenance of individual actions by opt-in class members when the class is decertified meets the most stringent test for mandamus. It is beyond the district court’s jurisdiction. A court which rejects a class as improper has no power" }, { "docid": "23221895", "title": "", "text": "that mere delay in making a class certification, even though contrary to the mandate to act as soon as practicable, does not deprive the district court of the power to enter an otherwise proper order. Nor do we believe that the entry of an erroneous judgment, subsequently vacated on appeal, necessarily terminated the court’s power to entertain a class action. In this case the delay was aggravated by the error, but, if we can confine inquiry to the question whether the court had power to grant class relief after the Supreme Court had decided the merits, we are satisfied that such power survived the violation of the rule. Cf. Sprogis v. United Air Lines, 444 F.2d 1194, 1201-1202 (7th Cir. 1971). We hold therefore that the district court did not exceed its jurisdiction by granting relief to the class on November 15, 1974. It may nevertheless have been reversible error to grant such relief at that time. We turn to that question. IV We start by noting that the prerequisites to a class action described in Rule 23(a) are clearly met in this case and that the allegations of the complaint satisfy the terms of subparagraph (b)(2). We have no doubt that a timely decision of the issue would have resulted in a certification that the case could be maintained as a class action. It is also clear that reversal would almost certainly be required if this were a class action maintained under subdivision (b)(3) of the rule. We read the Supreme Court’s recent opinions in Eisen, and American Pipe as rather plainly requiring that conclusion. But in Eisen the court carefully noted that it was there concerned only with the notice requirement applicable to class actions under subdivision (b)(3), a requirement which is inapplicable to class actions for injunctive or declaratory relief under subdivision (b)(2). That note implies that it may be appropriate to examine the reasons for the rule before interpreting it as mandating automatic reversal in a (b)(1) or (b)(2) case. The rule is largely concerned with the problem of one-way intervention. If unnamed members of the" }, { "docid": "23371786", "title": "", "text": "sum, the district court erroneously ' ruled that the consumers need not show that their reports were improperly disclosed under § 1861b in order to maintain their claims under § 1861e. This error requires us to vacate in part the certification ruling, as the error formed the basis for the district court’s findings that the consumers have individual standing, that they satisfy the prerequisites of Rule 23(a), and that they can maintain a class under Rule 23(b)(3). However, we reverse the part of the district court’s decision certifying the class under Rule 23(b)(2), because we find that the consumers cannot maintain a class action under this subsection. See Fed.R.Civ.P. 23(b)(2) (allowing a class action where “final injunctive relief or corresponding declaratory relief with respect to the class as a whole” is appropriate). 1 The district court certified this action under Rule 23(b)(2) primarily because the consumers are pursuing injunctive relief. The reporting agencies argue that the FCRA does not allow private litigants to obtain injunctive relief. In general, “[ajbsent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction.” Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 548 (5th Cir.1993) (alteration in original) (quoting Califano v. Yamasaki, 442 U.S. 682, 705, 99 S.Ct. 2545, 2559, 61 L.Ed.2d 176 (1979)). Thus we must consider whether Congress “clearly and unambiguously limited the court’s equity jurisdiction” under the FCRA. Id. Section 1681p gives us jurisdiction over “[a]n action to enforce any liability created under this subchapter.” 15 U.S.C. § 1681p. The term “liability” is discussed in the FCRA’s civil liability provisions, both of which expressly refer to damages and attorney fees without mentioning injunctive relief. See 15 U.S.C. §§ 1861n-1861o. This omission is significant because the Act elsewhere expressly grants the power to obtain injunctive relief to the FTC. See id. § 1861s(a) (“Compliance with the requirements imposed under [the FCRA] shall be enforced under the Federal Trade Commission Act ... by the Federal Trade Commission.”); 15 U.S.C. § 45(b) (stating, in a provision of the FTC" } ]

[ { "docid": "2285159", "title": "", "text": "EEOC. In this situation the courts have uniformly dismissed the complaint. In Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir.), cert. den. 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967), the court affirmed the lower court’s summary judgment, stating: “Plaintiff, Mickel, filed no charge with the Commission against Exide and thus failed to avail herself of the services of the Commission in an endeavor to effect, through ‘conference, conciliation and persuasion,’ the elimination by Exide of any alleged unlawful employment practices. She thus failed to satisfy the statutory requirements prior to the institution of her civil action * * 377 F.2d at 242. Again in Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258 (E.D.La. 1967), the court stated: “There are three named co-plaintiffs with Anthony Hill in Civil Action No. 67-286. But these plaintiffs, John Martin Oatis, David Johnson, Sr., and R. T. Young, have not filed charges with the Equal Employment Opportunity Commission. Defendants urge that they be dismissed from this suit because of their failure to resort to the E.E.O.C. before coming into court. “The Court agrees with the defendants’ contention. 42 U.S.C.A. § 2000e-5(e) clearly states that an aggrieved party may bring suit after having filed a charge with the Commission and receiving the statutory notice from that body. If the creation of the E.E.O.C. has any significance at all, an aggrieved party wishing to obtain relief under Title VII cannot be permitted to completely bypass the Commission. Title VII is entirely constructed around the creation of the E.E.O.C., and a decision that the Commission can be ignored by a person proceeding under this Title would be a complete distortion of the law. Therefore, Oatis, Johnson, and Young cannot be allowed to continue in this suit as plaintiffs.” 271 F.Supp. at 264. Accord: Barrister v. Steinberg, 56 L.C. ¶ 9071 (S.D.N.Y.1967). Thus, if the plaintiff files a timely charge with the EEOC alleging Act A, but then files a complaint with the Federal Court alleging Act C, an entirely different alleged unlawful employment practice, the court does not have jurisdiction over" } ]

[ { "docid": "7312571", "title": "", "text": "against maintenance of sexually segregated locals. It becomes readily apparent that specific in-junctive relief against maintenance of sexually segregated locals necessitated International’s presence. Further, any general injunctive relief granted to plaintiff against the Sheraton Hotel and Waitresses Local 507 only for the purpose of eliminating sex discrimination in her employment opportunities would be akin to rather ineffective symptomatic relief, leaving the root (sexually segregated locals) to continue. While money damages was an available remedy to compensate for any past illegal discrimination, we conclude that without International complete relief could not be accorded appellant Evans by way of injunctive relief necessary to prevent future discrimination. The United States Court of Appeals for the Fifth Circuit, speaking through Judge Carswell, said in Schutten v. Shell Oil Company, 421 F.2d 869, 873 (1970): “Subdivision (a) of Rule 19 categorizes those persons whose joinder is desirable from the standpoint of complete adjudication and elimination of relitigation. If there are no procedural or jurisdictional bars to joining such a party, Rule 19 requires that he be joined.” We turn then to the question of whether failure to charge International before the EEOC is a jurisdictional bar to its joinder. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) (1970) provides that if after a charge of discrimination is filed, the EEOC is unable to achieve compliance with the Act, within a specified time “a civil action may * * * be brought against the respondent in the charge.” Courts have generally interpreted this provision to mean that a charge must be filed against a party with the EEOC before court action can b.e commenced against the party. Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967); Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969); Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir. 1969); Cox v. United States Gypsum Company, 409 F.2d 289 (7th Cir. 1969); Marlowe v. Gen. Motors Corp., 6 FEP Cases 1083 (6th Cir. 1973); Norman v. Missouri Pacific Railroad, 414 F.2d 73 (8th Cir. 1969). The rule was circumvented in" }, { "docid": "9341785", "title": "", "text": "as a result of unlawful employment discrimination within the limitations of its equitable powers. Albemarle Paper Co. v. Moody, supra, 422 U.S. at 418, 95 S.Ct. 2362. Awarding compensatory damages for emotional harm, degradation, and humiliation — a legal remedy — would be inconsistent with both the language of section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), and the limitation of a court’s powers to the granting of equitable relief in Title VII cases. Jiron v. Sperry Rand Corp., 423 F.Supp. 155, 166 (D.Utah 1975); Pearson v. Western Electric Co., supra at 1151. Accordingly, plaintiffs’ claims of damages for emotional harm, degradation, and humiliation under Title VII will be stricken. Testing Procedures Defendants Local 130 and JAC argue that the allegations of ¶ 11(f) of the complaint (¶ 12(f) of the second amended complaint) that defendants have conditioned journeyman status on a discriminatory and unvalidated test should be stricken under both Title VII and section 1981 because no charge was filed with the EEOC containing this allegation. The plaintiffs reply that the EEOC charges filed relate to the denial of journeyman status. Because one of the prerequisites to becoming a journeyman plumber is the passing of a test, the charges necessarily incorporated the validity of the testing procedures. It is well-settled that a claim in this court based upon a violation of Title VII may properly encompass any acts of discrimination similar to or reasonably related to the allegations made in the charge initiated before the EEOC. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.) (en banc), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976) [hereinafter Jenkins]. The requisite similarity between an EEOC charge and a Title VII complaint is shown if the charge gave the defendant sufficient notice of the alleged kinds and areas of discrimination. Jiron v. Sperry Rand Corp., supra at 159. Absent a finding of the requisite similarity, a court must dismiss the claim for lack of jurisdiction. Edwards v. North American Rockwell Corp., 291 F.Supp. 199, 203 (C.D.Cal.1968). The EEOC charge of Hayward Rose" }, { "docid": "17520674", "title": "", "text": "of their complaints in these cases to include those allegations. Title VII mandates that there be a 180-day “cooling-off” period between the filing of charges with the EEOC and the institution of a civil suit in court during which the EEOC may have an opportunity to pursue conciliation. In Bosworth plaintiffs amended their complaint £o include the Title VII sex discrimination allegations prior to the expiration of that period. The issue is thus whether the premature inclusion of Title VII claims of sex discrimination in Bosworth, with its accompanying negative effect on the potential for conciliation, deprives this Court of jurisdiction under Title VII. There is nothing in the record in these cases indicating that the EEOC either made a determination of reasonable cause or dismissed the charges filed by plaintiffs. Thus, the named plaintiffs who alleged sex discrimination were not entitled to receive a right to sue letter under subsection (b) of the then existing regulation, until the expiration of the conciliation period. Bosworth demanded, and received, apparently contrary to law, a right to sue letter prior to the expiration of 180 days. Although Nixon received her right to sue letter after the expiration of 180 days, her Title VII sex allegations were added to the complaint in Bosworth prior to the running of that period. A plaintiff must exhaust his administrative remedies before filing suit under Title VII. See, e. g., Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d 267 (4th Cir. 1967) cert. denied, 390 U.S. 910, 88 S.Ct. 836, 19 L.Ed.2d 880 (1968); Mickel v. South Carolina State Employment Service, 377 F.2d 239, 242 (4th Cir.), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967). The Supreme Court has held that the filing of charges with the EEOC and the receipt of a right-to-sue letter are jurisdictional prerequisites to the institution of a Title VII action. However, the issuance of a right-to-sue letter by the EEOC subsequent to the filing of a Title VII complaint which complaint was not filed until after the expiration of the 180 day period cures the jurisdictional defect" }, { "docid": "22190772", "title": "", "text": "The court stated, that “a Title VII complaint must be viewed in relationship to the charges filed by the plaintiff against the defendant before the Equal Employment Opportunity Commission.” The court’s reasoning in denying certification of a class action was that: (1) “[i]t is clear that she did not raise sex before the EEOC . (2) “[wjhile there is an arguable connection to race by the allegation of hair style discrimination, such is not sufficient to raise the panorama of alleged [racial] evils plaintiff seeks to adjudicate in her complaint”; (3) “[h]er class could, therefore, only be composed of those persons denied promotion or not hired for wearing an Afro hair style”; and (4) “[n]o proof has been presented to the Court to show that this group of people would be so large that joinder of them in this action would be impracticable.” On January 21, 1975, the district court denied the plaintiff’s motion for a prelimi nary injunction. The plaintiff’s notice of appeal was from both the July 17, 1974 and January 21, 1975 orders. Upon this appeal a panel of this court reversed the district court’s judgment “[i]n light of the fact that the trial court dismissed the complaint because of the failure of the named plaintiff to qualify as representative of her class under Title VII, without giving consideration to the claim based on § 1981, and since we conclude that the relief claimed under § 1981 need not be based on any form of claim filed with the EEOC . . .” Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 522 F.2d 1235, 1241 (7th Cir.1975). The case was remanded for the district court to give consideration to whether the plaintiff could qualify as a representative of the class upon her § 1981 claim, which alleged only racial discrimination, and thereafter to consider “what equitable relief the plaintiff may be entitled to.” Id. at 1242. II. A petition for rehearing in banc was granted. Every member of the court would reach the same end result as the panel did — that is, reverse the judgment and" }, { "docid": "7638225", "title": "", "text": "Court has held that federal courts may award retroactive backpay against state officials under Title VII, because Title VII was enacted under the Enforcement Clause of the Fourteenth Amendment, superseding the state immunity provisions of the Eleventh Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Accordingly, the only monetary relief which the plaintiff may be awarded is that to which she is entitled under Title VII, that is, back pay, less the plaintiffs “interim earnings or amounts earnable with reasonable diligence” by the plaintiff. 42 U.S.C. § 2000e-5(g). TITLE VII CLAIMS AGAINST INDIVIDUALS The defendants next claim that they are entitled to dismissal of the plaintiffs Title VII claims against all six individual defendants because they were not named as respondents in the EEOC complaint filed by the plaintiff. Because they were not named in the original Title VII administrative complaint, they say, the Court lacks subject-matter jurisdiction over the claims against them. A copy of the actual EEOC charge appended to the plaintiffs first amended complaint formally names only the University of Maryland as the “discriminating employer,” and 42 U.S.C. § 2000e-5(f)(l) expressly provides that “a civil action may be brought against the respondent named in the charge.” The seminal Fourth Circuit case on interpretation of this “naming requirement” is Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir.1967). In Mickel, a Title VII civil action against an employer was dismissed because the employer, a defendant named in the civil action, was not named in the charge filed with the EEOC. The court there, in rejecting a spurious claim that the employer was the “agent” of the respondent named in the charge, opened up the possibility of a future agency exception to the naming requirement. 377 F.2d at 241. At least two more-recent decisions issued in this district have taken up the suggestion of Mickel and determined that limited exceptions exist to the Title VII naming requirement. Chastang v. Flynn and Emrich Co., 365 F.Supp. 957 (D.Md.1973), aff'd in relevant part, 541 F.2d 1040 (4th Cir.1976), held that “where there" }, { "docid": "9341786", "title": "", "text": "filed relate to the denial of journeyman status. Because one of the prerequisites to becoming a journeyman plumber is the passing of a test, the charges necessarily incorporated the validity of the testing procedures. It is well-settled that a claim in this court based upon a violation of Title VII may properly encompass any acts of discrimination similar to or reasonably related to the allegations made in the charge initiated before the EEOC. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.) (en banc), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976) [hereinafter Jenkins]. The requisite similarity between an EEOC charge and a Title VII complaint is shown if the charge gave the defendant sufficient notice of the alleged kinds and areas of discrimination. Jiron v. Sperry Rand Corp., supra at 159. Absent a finding of the requisite similarity, a court must dismiss the claim for lack of jurisdiction. Edwards v. North American Rockwell Corp., 291 F.Supp. 199, 203 (C.D.Cal.1968). The EEOC charge of Hayward Rose alleges that he was denied journeyman status. As testing is a means of securing journeyman status in the plumbing trade, it is within the scope of Rose’s charge challenging the denial of journeyman status. Accordingly, plaintiffs’ Title VII claim of a discriminatory and unvalidated test will not be dismissed. Furthermore, plaintiffs’ allegation in their complaint of a discriminatory and unvalidated test necessary to secure journeyman status will not be dismissed under section 1981. Section 1981 provides a federal remedy against discrimination in private employment on the basis of race whereby a claimant may be entitled to legal and equitable relief. Johnson v. Railway Express Agency, supra, 421 U.S. at 459-60, 95 S.Ct. 1716. Section 1981 relief is available irrespective of whether a claimant has pursued Title VII administrative remedies. Jenkins, supra at 166. Plaintiffs may challenge the administration of a test used to secure journeyman status pursuant to section 1981 even though their Title VII charges may not have encompassed a challenge to discrimination in securing journeyman status. Their complaint of racial discrimination in the" }, { "docid": "17519028", "title": "", "text": "(5th Cir.1983); see also supra note 10. .Appellees contend Donovan supports their defense that the Secretary’s independent action is limited to injunctive relief. We disagree. Donovan ’s discussion of injunctive relief concerned only whether the Secretary’s action was moot because the private parties dissolved the ESOP as part of their settlement. In fact, the Donovan court noted that whether the ■ Secretary's equitable claim for disgorgement was barred was not addressed by the district court and remanded that issue because \"the parties have not adequately addressed the issues raised by these remedial arguments in the special context of ERISA.” Donovan, 716 F.2d at 1462-63 & n. 10. . Defendants rely heavily on EEOC cases from other circuits that preclude the EEOC from recovering monetary relief for private individuals who already have settled in their own name. However, this circuit has recognized that the interests of the EEOC and private litigants at times \"are not necessarily compatible,” and \"are not always identical.\" Riddle v. Cerro Wire & Cable Group, Inc., 902 F.2d 918, 922-23 (11th Cir.1990) (holding private litigant’s Title VII claims not barred by EEOC’s settled suit). Riddle concluded that although the EEOC is able to recover damages for back pay and benefits, the EEOC is primarily interested in preventing employment discrimination in the workplace; whereas, the aggrieved individual is more interested in \"specific personal relief” in her private action. Id. at 922-23. Defendants’ reliance on EEOC cases also ignores the different statutory enforcement schemes of Title VII and the ADEA, which reflect Congress’s intent to limit multiple suits. Title VII and the ADEA require a private plaintiff to file a discrimination charge with the EEOC before suing. 42 U.S.C. § 2000e-5(b), (e), and (f); 29 U.S.C. § 626(d). The ADEA also terminates a private plaintiff’s right of action under the ADEA upon \"commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter.\" 29 U.S.C. § 626(c)(1). In contrast, ERISA gives plan beneficiaries and the Secretary independent rights of action, does not require private plaintiffs to file charges with the" }, { "docid": "4471982", "title": "", "text": "626(d) required Hardtke to file notice of intent to sue within 180 days of his termination, the district court relied on Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975), a case brought under Title VII of the Civil Rights Act of 1964 dealing with time limitations for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC). In Olson, the complainant filed an employment discrimination charge with the EEOC more than 180 days after her allegedly discriminatory termination. In addition, she did not institute state proceedings relating to the alleged unlawful discharge within the ninety day state limitation period. The court held that in a deferral state a charge of employment discrimination must be filed with the state agency within 180 days of an alleged unlawful act to trigger the extended 300-day filing period with the EEOC. Because the Olson complainant did not institute state proceedings within 180 days of her discharge, the court concluded that she was not entitled to the 300-day period for filing with the EEOC and dismissed her action. Olson v. Rembrandt Printing Co., supra, 511 F.2d at 1233. Cf. Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976) (in a deferral state, where a complainant files a state claim for Title VII relief more than 180 days after termination but within the state limitation period, the extended 300-day period for filing with the EEOC applies). Employing the Olson reasoning in a Title VII claim to the ADEA action before it, the district court in the instant case dismissed Hardtke’s action because, having failed to commence state proceedings, Hardtke had to provide notice of intent to sue to the Secretary within 180 days of his termination which he failed to do. In light of the Supreme Court’s decision in Oscar Mayer & Co. v. Evans, supra, we do not believe the Olson reasoning relating to Title VII claims applies to filing limitation periods under the ADEA. Unlike a person charging discrimination under Title VII, an ADEA claimant may bring a federal action without having timely commenced state proceedings. The Supreme Court" }, { "docid": "2288477", "title": "", "text": "her Title VII complaint are not “like or related” to those allegations listed in her EEOC charge and investigated by the Commission. Plaintiff did not raise these claims in her charge, and the EEOC has had no opportunity to consider the promotion and age claims. The court’s finding is consistent with the policy set forth in Sanchez which states: “[n]o issue will be the subject of a civil action until the' EEOC has first had the opportunity to attempt to obtain voluntary compliance.” Sanchez, 431 F.2d at 467. Moreover, this court’s conclusion is supported by the case law in this circuit. See e.g., Thornton v. Georgia Power Co., 31 F.E.P. 901 (N.D.Ga.1980) (employee precluded from suing on sex discrimination claim under Title VII after alleging only race discrimination claim in EEOC charge); Whittaker v. Dept. of Human Resources of State of Georgia, 86 F.R.D. 689 (N.D.Ga.1980) (black female employee could not raise sex discrimination claim in Title VII action where she alleged only race discrimination in her EEOC charge); Eastwood, 441 F.Supp. at 53 (complaints of harassment due to participation in prior employment investigation not reasonably related to charge of sex discrimination filed with the EEOC). Accordingly, the court finds that Plaintiff Buffington may not pursue her promotion and age claims under Title VII or the ADEA in the present action. C. Plaintiffs Section 1981 Claims The court’s finding, however, that Plaintiff’s promotion and age claims are not actionable under Title VII or the ADEA, does not deprive Plaintiff of judicial consideration of both of these claims. Plaintiff Buffington raised 42 U.S.C. § 1981 as an alternative statutory basis for relief in her Complaint. Although Plaintiff may not pursue her age discrimination claim under section 1981, see Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), she may pursue her denial of promotion claim under section 1981 to the extent that the denial of promotions were based on alleged racial discrimination. This conclusion is supported by the ruling of Judge Evans in Mack v. W.R. Grace Co., 578 F.Supp. 626, 632 (N.D.Ga.1983), cert." }, { "docid": "10956871", "title": "", "text": "Univ., 5 F.3d 279, 281-82 (7th Cir.1993). Accordingly, at this stage of the litigation, the court views Vakharia’s claims as based on a continuing violation which occurred within the statute of limitations. 2. EEOC Preconditions As a threshold matter, the court discusses the issue of compliance with Equal Opportunity Employment Commission (“EEOC”) filing requirements for Title VII and ADEA claims. Congress directs that a party suing for discrimination must file charges with the EEOC before proceeding with a Title VII or ADEA claim in federal court. See 42 U.S.C. § 2000e-5(f)(l) (Title VII); 29 U.S.C. § 626(d) (ADEA). Parties not named in a charge already filed with the EEOC may not be sued under Title VII or the ADEA unless that party had adequate notice of the charge and was given opportunity to participate in conciliation proceedings. Vakharia v. Swedish Covenant Hosp., 824 F.Supp. 769, 774 (N.D.Ill.1993). The copy of Vakharia’s charge, submitted with her responsive pleadings, names only the Hospital as the perpetrator of discrimination. Vakharia states that her EEOC “intake questionnaire” sufficiently notified all Defendants of the charges against them. Vakharia completed the questionnaire by referring the reader to a copy of her Complaint for the names of the discriminators. The court finds that this questionnaire does not serve as a “charge” for purposes of notifying Defendants. See Jones v. United Air Lines, No. 94 C. 4506, 1995 WL 491497, at *4 (N.D.Ill. Aug. 14, 1995) (holding that the job applicant had not satisfied EEOC filing preconditions where defendants were named in several EEOC questionnaires describing alleged discrimination, but not in an official “charge”). Accordingly, Vakharia has not complied with the EEOC requirements in filing her Title VII and ADEA charges against any Defendant except the hospital. Vakharia correctly states that EEOC requirements are subject to the principles of equitable tolling and waiver. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725-26, 80 L.Ed.2d 196 (1984). However, Vakharia fails to offer the court any justification for invoking such principles. Interestingly, Vakharia argues (not surprisingly without citation) that whether those principles apply is" }, { "docid": "1214700", "title": "", "text": "in the proceedings. . Scaramuzzo also urges that the 180-day notice requirement not be held to preclude his demotion and retaliation claims because Glen-more’s actions constitute a “continuing violation,” and because the notice requirement may be tolled if equitable considerations are shown. Both of these arguments, however, relate to situations where a claimant has filed charges with the administrative agency after the statutory time limit has passed. In the instant case, plaintiff has not filed a late charge regarding his demotion and retaliation, but rather he has filed no charge at all. Thus, the “continuing violation” and “tolling” arguments are inapplicable. . The liberality with which this standard is to be applied is evident from the facts in the Jenkins case. In that case the claimant’s EEOC charge encompassed only racial discrimination in promotional practices. Her judicial complaint, however, alleged a pattern of racial and sex discrimination in hiring, promotions, assignments, and compensation. The original Seventh Circuit panel held that the EEOC charges limited both the type of discrimination and the number of employment practices that could be challenged in the court proceeding. On rehearing en banc, the Court reversed the panel on the issue of the limitations, allowing plaintiff to proceed with a complaint alleging race and sex discrimination with respect to a variety of employment practices. . Indeed, though both parties raise arguments regarding the applicability of equitable modification, neither party noted that in 1978 Congress expanded plaintiffs rights under the ADEA by requiring only that a “charge” rather than a “notice of intent to sue” be filed with the Secretary of Labor. The conference committee report accompanying the amendment explains that the “charge” requirement “is not a jurisdictional prerequisite to maintaining an action under the ADEA and that therefore equitable modification for failing to file within the time period will be available to plaintiffs.... ” H.R.Rep.No.95-950, 95th Cong. 2d Sess., reprinted in [1978] U.S.Code Cong. & Ad. News, pp. 504, 534. . Scaramuzzo’s letter states that, “One of the bases of the lawsuit is the unlawful termination of Mr. Scaramuzzo in February 1979 on account of his" }, { "docid": "16884615", "title": "", "text": "v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The court must view the evidence in the light most favorable to the non-moving party. O’Brien v. National Gypsum Co., 944 F.2d 69, 72 (2d Cir.1991). However, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586, 106 S.Ct. at 1355. This is particularly true when the issue is one on which the opponent of summary judgment would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551-52, 91 L.Ed.2d 265 (1986). Pfizer has moved for summary judgment on the following grounds: (1) Branker’s Title VII/ADEA, NYCHRL and NYSHRL claims are barred because she failed to exhaust her administrative remedies, as required by these statutes; (2) Branker’s action is barred because she knowingly and voluntarily signed the release of all claims; (3) Branker cannot establish a prima facie case of discrimination; (4) Branker’s Title VII and ADEA action as against Steere must be dismissed because he cannot be held individually liable on such claims; (5) Branker fails to state a claim of intentional infliction of emotional distress. Branker Failed to Exhaust her Administrative Remedies as Required to Bring Suit Under Title VII, the ADEA and the NYCHRL Branker does not contradict Pfizer’s contention that she commenced this action without filing a complaint regarding her Title VII and ADEA claims before the Equal Employment Opportunity Commission (“EEOC”). Under both statutes, such a filing and receipt of a right-to-sue letter from the agency are necessary prerequisites to bringing a legal action. Title VII, 42 U.S.C. §§ 2000e-5(e)(l), (f)(1); ADEA, 29 U.S.C. § 626(d). Failure to do so. is sufficient ground for dismissal of the action: A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is “reasonably related” to that alleged in the EEOC charge. This exhaustion requirement is an essential element of Title" }, { "docid": "10743680", "title": "", "text": "CCM received by Ms. Rivera, Ms. Gaitan, Mr. Seal, Mr. Valaitis, Ms. Thomas, and Mr. Fitzpatrick. Ms. Smith also claims that Allstate violated the EPA by paying six male employees more than her for equal work: Mr. Pieroth, Mr. Seal, Anthony Soskich, Harold Landt, Robert Nugent, and Jon Wojicomski. February 1, 199k Promotion of Olga Rivera Ms. Smith claims that she was illegally discriminated against on the basis of her race and age when she was denied the promotion received by Ms. Rivera on February 1, 1994. Allstate argues that this claim is time barred because Ms. Smith did not file her charge of discrimination within 300 days of the denial of the promotion. Under Title VII and the ADEA, Ms. Smith had up to 300 days to file a charge with the EEOC since she resides in Illinois, a state which has an agency authorized to grant relief from unlawful employment practices. See Gilardi v. Schroeder, 833 F.2d 1226, 1230 (7th Cir.1987) (interpreting 42 U.S.C. § 2000e-5(e)(1)); 29 U.S.C. §§ 626(d), 633(b) (stating that the plaintiff has 300 days to file where a state has an agency authorized to grant relief). Ms. Smith filed her EEOC charge on December 20, 1994, more than 300 days after the alleged discriminatory action. Because Ms. Smith did not file a timely charge with regards to this claim, she cannot bring suit under either Title VII or the ADEA. See Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1240 (7th Cir.1980) (stating that plaintiffs must file a charge with the EEOC to bring a suit under Title VII); 29 U.S.C. § 626(d) (“No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC].”). Ms. Smith responds that she in fact notified the EEOC of her initial charge, charge no. 210950889, on November 23, 1994, when she caused a written copy of the charge to be hand delivered to the EEOC. Ms. Smith states that the date in her complaint is merely the date" }, { "docid": "20450593", "title": "", "text": "before us: whether the ADEA precludes a § 1983 equal protection claim. C. ADEA Preclusion of § 1983 Claims Congress enacted the ADEA “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U.S.C. § 621(b). The ADEA makes it unlawful for an employer to “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual’s age.” Id. § 623(a)(1). In general, the ADEA provides coverage for private, state, and federal employees who are forty years of age and older, id. §§ 630(f), 631(a), 633a(a), albeit with a few notable exceptions, see id. §§ 623(j), 630(f). The Act “incorporates some features of both Title VII and the Fair Labor Standards Act of 1938 [FLSA], which has led [the Supreme Court] to describe it as ‘something of a hybrid.’” McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 357, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (quoting Lorillard v. Pons, 434 U.S. 575, 578, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978)). Specifically, the substantive provisions of the ADEA are modeled after Title VII, while its remedial provisions incorporate provisions of the FLSA. Id.; 29 U.S.C. § 626(b). The ADEA expressly grants individual employees a private right of action. McKennon, 513 U.S. at 358, 115 S.Ct. 879 (citing 29 U.S.C. § 626(c) (“Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter.”)). An ADEA plaintiff must first file a charge with the Equal Employment Opportunity Commission (EEOC), generally within 180 days of the unlawful age discrimination. 29 U.S.C. § 626(d)(1). The EEOC then notifies all parties involved and, if the EEOC believes there has been a violation, the agency “promptly seek[s] to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.” Id. § 626(d)(2). If the EEOC charge is" }, { "docid": "18662559", "title": "", "text": "The better view is that a Title VII complaint is sufficient if it alleges fundamental facts reflecting a pattern or practice of racial discrimination. United States v. Gustin-Bacon Div. Certain-Teed Products, 426 F.2d 539, 543 (10th Cir. 1970). The complaint in this case meets those standards. Defendant’s motion to dismiss or strike the class-based allegations of the complaint is denied. Standard next argues that the scope of the second amended complaint must be narrowed because it raises grounds which were not first presented to the EEOC. Standard contends that the complaint cannot properly add new types of discrimination (sex, national origin, and religion), new statutory violations (§ 1981 and the Equal Pay Act), or new acts of discrimination (recruitment, hiring, training, wages, etc.). Standard would have us limit the complaint to plaintiff’s Title VII claims of racial discrimination which are connected with her discharge from her employment. Plaintiff has voluntarily limited the breadth of her complaint by dismissing her claims of religious discrimination and Equal Pay Act violations. And § 1981 is available to redress racial discrimination even if the Title VII claim is impermissibly broad in light of the EEOC charges. Jenkins v. Blue Cross Mutual Hospital Ins., Inc., 522 F.2d 1235 (7th Cir. 1975), rev’d en banc on other grounds, 538 F.2d 164 (1976). However, § 1981 is limited to discrimination based on race. Therefore, defendant’s attack is reduced to a challenge to the allegations of sex and national origin discrimination, and the inclusion of new acts of discrimination on an across-the-board basis. The general rule is that a judicial complaint in a Title VII action may encompass “any discrimination like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations.” Jenkins, supra, 538 F.2d at 167. This rule seeks to insure that the EEOC’s voluntary conciliation procedures will be invoked before a federal suit is filed. The administrative scheme would be frustrated if a claimant could settle a narrow EEOC charge and then bring a broad attack against the same employer in federal court. Sanchez v. Standard Brands, Inc., 431 F.2d" }, { "docid": "8684693", "title": "", "text": "resort to available state procedures to vindicate their rights, before filing suit in federal court. See 29 U.S.C. § 633(b); 42 U.S.C. § 2000e-5(c); see generally Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979). And the federal Equal Employment Opportunity Commission (“EEOC”) refers complaints filed with it in New York under either Title VII or the ADEA to the counterpart state agency. See Shaw, 463 U.S. at 101-02, 103 S.Ct. 2890 (“When an employment practice prohibited by Title VII is alleged to have occurred in a State or locality which prohibits the practice and has established an agency to enforce that prohibition, the [EEOC] refers the charges to the state agency.”); Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 255 (2d Cir.1991) (summarizing relevant statutory and regulatory provisions and stating that “[a] plaintiff who wishes to bring a discrimination claim under the ADEA must first file with the EEOC. In states such as New York which have their own agencies to investigate and obtain relief for discriminatory practices, however, the EEOC refers all such complaints to that state agency.”). Although the interaction between federal and state law is not entirely transferable from the Title VII context to the ADEA context, see, e.g., Oscar Mayer, 441 U.S. at 756-57, 99 S.Ct. 2066 (noting that Title VII requires claimants to file charges with a state antidiscrimination agency before filing with the EEOC, while the “ADEA permits concurrent rather than sequential state and federal administration jurisdiction in order to expedite the processing of age-discrimination claims”), it is nonetheless apparent that both federal statutes rely upon a “joint state/federal enforcement” scheme. Thus, the New York Human Rights Law is saved from preemption in this case precisely to the extent that its protections track those of the ADEA. See Shaw, 463 U.S. at 108, 103 S.Ct. 2890 (“We hold that New York’s Human Rights Law is preempted with respect to ERISA benefit plans only insofar as it prohibits practices that are lawful under federal law.”); accord Humana, Inc. v. Forsyth, — U.S. -, -," }, { "docid": "16884616", "title": "", "text": "action as against Steere must be dismissed because he cannot be held individually liable on such claims; (5) Branker fails to state a claim of intentional infliction of emotional distress. Branker Failed to Exhaust her Administrative Remedies as Required to Bring Suit Under Title VII, the ADEA and the NYCHRL Branker does not contradict Pfizer’s contention that she commenced this action without filing a complaint regarding her Title VII and ADEA claims before the Equal Employment Opportunity Commission (“EEOC”). Under both statutes, such a filing and receipt of a right-to-sue letter from the agency are necessary prerequisites to bringing a legal action. Title VII, 42 U.S.C. §§ 2000e-5(e)(l), (f)(1); ADEA, 29 U.S.C. § 626(d). Failure to do so. is sufficient ground for dismissal of the action: A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is “reasonably related” to that alleged in the EEOC charge. This exhaustion requirement is an essential element of Title VTI’s statutory scheme. As we noted ... with respect to an analogous EEOC charge requirement in the Age Discrimination in Employment Act, the purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC. Butts v. City of New York Department of Housing Preservation and Development, 990 F.2d 1397, 1401 (1993) (quoting Miller v. International Tel. & Tel, 755 F.2d 20, 26 (2d Cir.1985)) (quotation marks and other citations omitted); Dillman v. Combustion Eng’g. Inc., 784 F.2d 57, 59 (2d Cir.1986) (ADEA claims dismissed on summary judgment for failure to file timely charge with EEOC); Hogan v. 50 Sutton Place South Owners, Inc., 919 F.Supp. 738, 746 (S.D.N.Y. 1996) (dismissing Title VII claim for failure to file complaint with EEOC). Similarly, Section 8-502(e) of the New York City Administrative Code requires that “[p]rior to commencing a civil action ... the plaintiff shall serve a copy of the complaint upon" }, { "docid": "18662560", "title": "", "text": "racial discrimination even if the Title VII claim is impermissibly broad in light of the EEOC charges. Jenkins v. Blue Cross Mutual Hospital Ins., Inc., 522 F.2d 1235 (7th Cir. 1975), rev’d en banc on other grounds, 538 F.2d 164 (1976). However, § 1981 is limited to discrimination based on race. Therefore, defendant’s attack is reduced to a challenge to the allegations of sex and national origin discrimination, and the inclusion of new acts of discrimination on an across-the-board basis. The general rule is that a judicial complaint in a Title VII action may encompass “any discrimination like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations.” Jenkins, supra, 538 F.2d at 167. This rule seeks to insure that the EEOC’s voluntary conciliation procedures will be invoked before a federal suit is filed. The administrative scheme would be frustrated if a claimant could settle a narrow EEOC charge and then bring a broad attack against the same employer in federal court. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). This rule allows the scope of the judicial complaint to extend to the scope of the EEOC investigation growing out of the charges. The breadth of this standard reflects the fact that an EEOC charge only triggers the agency’s investigatory procedures and its efforts at voluntary compliance. If these efforts fail, a lawsuit may result. Hence, a subsequent civil action actually “grows out” of the EEOC investigation rather than the employee’s specific charge. The Seventh Circuit has indicated that the “like or related” test is to be very liberally applied. In Jenkins, supra, the claimant’s EEOC charge only encompassed racial discrimination in promotional practices. Her judicial complaint, however, alleged a broad-based pattern of racial and sex discrimination in hiring, assignment, pay and promotion. The original panel held that the EEOC charges limited both the type of discrimination and the number of employment practices which could be challenged. On rehearing en banc, however, the Seventh Circuit reversed the panel in both respects, allowing plaintiff to proceed with a complaint alleging a pattern" }, { "docid": "4995339", "title": "", "text": "the explicit sex-based comments are the same persons responsible for the allegedly disparate administrative requirements endured by the plaintiff. For example, Ma-guire is identified as the main offender in making sex based comments to Anderson and was also responsible for limiting the plaintiffs use of her county vehicle. Du-dek, who is alleged to have been present for and participated in some of Maguire’s sexually explicit comments, made decisions regarding the plaintiffs medical leave, time accounting procedures, and work responsibilities. In addition, fact issues are raised as to whether Sheriff Reilly knew about and was tolerant of the sex-based comments complained of by the plaintiff. In view of all of the circumstances in this case, a reasonable jury could infer that the alleged adverse treatment of Anderson was suffered on account of her gender. 2. As to Whether Plaintiffs Title VII Hostile Environment Claims are Time-Barred Pursuant to Title VII and the ADEA, a charge of discrimination must be filed with the Equal Employment Opportunity Commission (“EEOC”) within 180-days of any alleged unlawful employment practice or 300-days where there is a State or local agency with authority to grant or seek relief from such practice. 42 U.S.C. § 2000e — 5(e)(1); Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 237-38 (2d Cir.2007) (recognizing that 300- day filing requirement applies to the ADEA). Because New York has its own anti-discrimination laws and enforcement agency, the statute of limitations for filing a charge of discrimination with the EEOC is 300-days after the alleged occurrence of an unlawful employment practice. Id.; Harris, 186 F.3d at 247 n. 2 (quoting Morgan, 536 U.S. at 118, 122 S.Ct. 2061, 153 L.Ed.2d 106). Failure to timely file a charge with the EEOC renders the subject claim time-barred, preventing a claimant from bringing her claim in federal court. Elmenayer v. ABF Freight System, Inc., 318 F.3d 130 (2d Cir.2003); Starr v. Time Warner, Inc., No. 07CV5871, 2007 WL 4144627, at *3 (S.D.N.Y. Nov.21, 2007). Here, the plaintiff filed a complaint with the New York State Human Rights Division (“the Human Rights Division”) on February 23, 2004. Pursuant" }, { "docid": "7638226", "title": "", "text": "only the University of Maryland as the “discriminating employer,” and 42 U.S.C. § 2000e-5(f)(l) expressly provides that “a civil action may be brought against the respondent named in the charge.” The seminal Fourth Circuit case on interpretation of this “naming requirement” is Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir.1967). In Mickel, a Title VII civil action against an employer was dismissed because the employer, a defendant named in the civil action, was not named in the charge filed with the EEOC. The court there, in rejecting a spurious claim that the employer was the “agent” of the respondent named in the charge, opened up the possibility of a future agency exception to the naming requirement. 377 F.2d at 241. At least two more-recent decisions issued in this district have taken up the suggestion of Mickel and determined that limited exceptions exist to the Title VII naming requirement. Chastang v. Flynn and Emrich Co., 365 F.Supp. 957 (D.Md.1973), aff'd in relevant part, 541 F.2d 1040 (4th Cir.1976), held that “where there is substantial, if not complete identity of parties before the EEOC and the Court, it would require an unnecessarily technical and restrictive reading” of the naming requirement to deny jurisdiction. 365 F.Supp. at 964, cited favorably in EEOC v. Am. Nat. Bank, 652 F.2d 1176, 1186 (4th Cir.1981). Vanguard Justice Society, Inc. v. Hughes, 471 F.Supp. 670 (D.Md.1979), addressed a situation almost identical to that presented here. In Vanguard, plaintiffs had named the employing entities in their administrative charges, but not important officials of the entities whom they named in their civil action. 471 F.Supp. at 687. Vanguard held that the plaintiffs had substantially complied with the naming requirement, particularly since [it] has not been asserted that [the defendant] lacked actual notice of plaintiffs’ charges ... or that the EEOC’s actions with regard to conciliation of those charges were in any way affected ... 471 F.Supp. at 688-89. Vanguard applied a four-part test which originated in Glus v. G. C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977), and was endorsed in Eggleston v. Chicago" } ]

[ { "docid": "21742246", "title": "", "text": "the case.’ ”) (citations omitted); Artis v. Greenspan, 223 F.Supp.2d 149, 154 (D.D.C.2002). 1. General Jurisdiction Under D.C.Code § 13-334(a) (2001) The general jurisdiction provision for the District of Columbia is found at § 13-334(a) of the District of Columbia Code, and authorizes the courts in this jurisdiction to “exercise ‘general jurisdiction’ over a foreign corporation as to claims not arising from the corporation’s conduct in the District, if the corporation is ‘doing business’ in the District.” Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509 (D.C.Cir.2002). The “doing business” test of this statutory provision was found by the District of Columbia Circuit to be coextensive with the due process requirements of the Constitution and “requires an examination of the frequency and volume of the [defendants’] transactions with District [of Columbia] residents.” Id. at 513. Therefore, this Court may exercise general jurisdiction over a foreign corporation whose contacts with the District are so continuous and systematic that it could foresee being haled into a court in the District of Columbia. Id. at 509. For example, the defendant in Gorman was found to have continuous and systematic contacts with the District because “District residents use[d] its website to engage in electronic transactions with the [defendant].” Id. at 512. And “[a]s a result of their electronic interactions, [defendant] Ameritrade and its District of Columbia customers enter[ed] into binding contracts, the customers [became] the owners of valuable securities, and Ameri-trade obtained] valuable revenue.” Id. at 512-513. However, some presence in the District of Columbia is not alone grounds to exercise general jurisdiction in every situation. For example, in Fandel v. Arabian Am. Oil Co., 345 F.2d 87 (D.C.Cir.1965), the defendant was in the business “of producing, refining, and selling oil and gas” in two countries in the Middle East. The Circuit Court in Fandel held that the defendant’s District of Columbia six-room office where five employees worked did not alone constitute “doing business” in the District. Id. at 88-89. The defendant’s activities in the District of Columbia in Fandel were to “maintain continuing relationships with the State Department and other executive agencies of" } ]

[ { "docid": "19734166", "title": "", "text": "54 F.3d 825, 828 (D.C.Cir.1995)). Plaintiffs’ arguments can reasonably be read to assert jurisdiction under both the District of Columbia’s general jurisdiction statute and its specific jurisdiction statute. (2d Supp. Compl. ¶ 2; Pis.’ Opp’n at 37.) 1. General jurisdiction The District of Columbia’s general jurisdiction statute, D.C.Code § 13-334(a), “authorizes the courts in this jurisdiction to ‘exercise “general jurisdiction” over a foreign corporation as to claims not arising from the corporation’s conduct in the District, if the corporation is doing business in the District.’ ” AGS Int’l Servs. S.A. v. Newmont USA Ltd., 346 F.Supp.2d 64, 74 (D.D.C.2004) (quoting Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509 (D.C.Cir.2002)). Because “[t]he ‘doing business’ test of this [statute] was found by the District of Columbia Circuit to be coextensive with the due process requirements of the Constitution[,]” the test for general jurisdiction is whether Chevron-Texaco’s contacts with the District have been “so continuous and systematic that it could foresee being haled into court in the District of Columbia.” Newmont USA Ltd., 346 F.Supp.2d at 74. “However, some presence in the District of Columbia is not alone grounds to exercise general jurisdiction in every situation.” Id. According to plaintiffs, ChevronTexaco “has a corporate office in the District of Columbia at 1401 I Street, N.W., at which it has a Vice President permanently assigned.” (Pis.’ Opp’n at 37.) Plaintiffs report, though, that they unsuccessfully attempted to serve ChevronTexaco at that office and service was eventually accepted in an office in California. (Id.) The facts provided by plaintiffs fail to establish a sufficient “factual basis for the court’s exercise of personal jurisdiction,” Arista Records, 314 F.Supp.2d at 30, within the meaning of D.C.Code § 13-334(a). Plaintiffs have failed to provide any information showing what if any business ChevronTexaco conducts in its office in the District of Columbia. Such facts are necessary to determine if ChevronTex-aco’s activity in its District of Columbia office is the “type of contact worthy of consideration for jurisdictional purposes under § 13—334(a).” Newmont USA Ltd., 346 F.Supp.2d at 76 (holding that federal district court did not have personal jurisdiction" }, { "docid": "19734168", "title": "", "text": "over foreign corporation whose only contact with the District was an office engaged in federal governmental liaison activities); see Fandel v. Arabian Am. Oil Co., 345 F.2d 87 (D.C.Cir.1965) (same). Because plaintiffs have failed to allege specific facts regarding the nature of ChevronTexaco’s business activity in its District of Columbia office, plaintiffs have failed to meet their burden of establishing that ChevronTexaco is subject to the court’s jurisdiction under the District of Columbia’s general jurisdiction statute. 2. Specific jurisdiction Under the District of Columbia’s long-arm statute, a court in the District of Columbia may exercise personal jurisdiction over a person outside the District if the plaintiffs claim arises from the defendant’s “transacting any business in the District of Columbia.” D.C.Code § 13-423(a)(1). Like the District of Columbia’s general jurisdiction statute, “[sjection (a)(l)’s ‘transacting any business’ clause generally has been interpreted to be coex- tensive with the Constitution’s due process requirements and thus to merge into a single inquiry.” GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d at 1347. “While general personal jurisdiction permits a court to hear ‘a suit ... without regard to the underlying claim’s relationship to the defendant’s activity’ in the forum, specific personal jurisdiction allows only those claims ‘based on acts of a defendant that touch and concern the forum.’ ” Kalil & Co., 404 F.Supp.2d at 227 (citing Schwartz v. CDI Japan, Ltd., 938 F.Supp. 1, 5 (D.D.C.1996)). Plaintiffs appear to assert that this court has specific personal jurisdiction over ChevronTexaco by virtue of Chevron-Texaco’s participation in the “2003 subcommittee of the NPC that prepared the pricing for natural gas at high levels.” (Pis.’ Opp’n at 37.) This allegation is insufficient to subject ChevronTexaco to the jurisdiction of this court because it is merely a conclusory assertion that lacks factual particularity. First, to the extent that plaintiffs contend that ChevronTexaco is subject to this court’s personal jurisdiction based on ChevronTexaco’s alleged conspiratorial activities, the allegation that ChevronTexaco conspired with other defendants “represents nothing more than a legal conclusion, which we have held ‘does not constitute the prima facie showing necessary to carry the burden" }, { "docid": "585059", "title": "", "text": "D.C. with the Saudi Ambassador, Prince Bandar and “an unspecified number” of mailings to the Ambassador. Memorandum Of Points And Authorities In Support Of The Smith Defendants’ Motion To Dismiss Or, Alternatively, For Transfer To Connecticut (“Smith Defendants’ Motion”) at 5. See also Reply Memorandum In Support Of The Smith Defendants’ Motion To Dismiss Or, Alternatively, For Transfer To Connecticut (“Smith Defendants’ Reply”) at 2. Thus, Smith defendants’ admitted contacts with the forum are more substantial than any of the UTC Individual Defendants. On sheer number of contacts alone, this Court concludes that the “minimum contacts” requirement is satisfied as to the Smith defendants. Moreover, the plaintiff sets forth a continuing association between General Smith and Ambassador Bandar which is integral to the success of the alleged conspiracy. In essence, plaintiff Dooley charges that General Smith was the eyes and ears of defendant UTC/Sikorsky in dealing with Ambassador Bandar. See, e.g., Complaint ¶1¶ 41, 134, 142, 155, 164. The plaintiff’s claims stem, in large part, from the association between Prince Bandar and General Smith. This relationship is one of the centerpieces of the alleged conspiracy. Without it, Dooley claims, the conspiracy which ultimately caused his demotion might never have existed. The Court finds these allegations sufficient to establish the plaintiff’s prima facie case as to the Smith Defendants. The Smith Defendants’ central argument against the assertion of personal jurisdiction is that any contacts between Olin Smith and Ambassador Bandar cannot be considered under the government contacts exception. They argue that the Court of Appeals, in Fandel v. Arabian Am. Oil Co., 345 F.2d 87 (D.C.Cir.1965), concluded that a defendant’s contact with a foreign embassy qualify as government contacts. Smith Defendants' Motion at 6. However, the Court’s opinion in Fandel does not support this conclusion. In Fandel, the Court held that a foreign corporation’s activity in Washington, D.C., which included advising the State Department, other executive agencies of the United States, educational and international organizations, as well as diplomatic missions, on the Middle East, did not constitute “doing business” in the District of Columbia. Fandel, 345 F.2d at 88-89. The Court" }, { "docid": "16464074", "title": "", "text": "could rest personal jurisdiction under the Clayton Act. Plaintiffs’ claim that jurisdiction exists over defendants under the Clayton Act thus fails. E. General Jurisdiction Pursuant to Section 13-S3I(a) of the D.C.Code In its post-argument supplemental brief, plaintiff asserts that the Court has jurisdiction over Columbia Gas pursuant to the general jurisdictional grant of Section 13 — 334(a) of the District of Columbia Code. Under the doctrine of general jurisdiction, a court may exercise personal jurisdiction over a non-resident defendant when that non-resident defendant has engaged in “continuous and systematic general business contacts” in the forum, notwithstanding the fact that those contacts do not relate to the underlying cause of action. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); see also Gorman v. Ameritrade Holding Corp., 293 F.3d at 509; El-Fadl v. Central Bank of Jordan, 75 F.3d at 675. Jurisdiction under Section 13-334(a) requires that such systematic contacts demonstrate “a ‘continuing corporate presence in the forum ... directed at advancing the corporation’s objectives.’ ” El-Fadl v. Central Bank of Jordan, 75 F.3d at 675 (quoting AMAF Int’l Corp. v. Ralston Purina Co., 428 A.2d at 851). The reach of such general jurisdiction in the District of Columbia is “coextensive with the reach of constitutional due process.” Gorman v. Ameritrade Holding Corp., 293 F.3d at 510 (citing Hughes v. A.H. Robins Co., 490 A.2d 1140, 1148 (D.C.1985)). Plaintiff rests its general jurisdiction claim on the ground that “the principal defendant, Columbia Gas Transmission Corporation, operates an ‘active’ Internet website in the form of an electronic bulletin board (EBB) [ (the “Navigator” site) ] that gas traders in the District can and do use to schedule natural gas deliveries on the [Columbia Gas] interstate pipeline system pursuant to transportation agreements between [Columbia Gas] and the marketers.” Pl.’s 2d Supp. Mem. at 14. In support of this claim, plaintiff provides the affidavit of the President of Atlantigas Corp. John R. Cory, in which he avers: (1) that PEPCO Energy Services, Inc. (“PES”) was located for some time between 2000 and 2002 in the" }, { "docid": "16464087", "title": "", "text": "Decl. ¶¶ 4-5. While Cove Point is jointly owned by Columbia Gas and PEPCO, it had no office or facility in the District of Columbia. According to Mr. Sypoit, Cove Point’s business \"is to receive, store and deliver natural gas to energy distribution companies, who then determine where the gas will be sold and delivered,” and \"none of that activity is conducted in the District.” Id. ¶ 6. . Furthermore, assuming CES's contacts with the District of Columbia stemming from its agreement with WGES to market natural gas in the District could be imputed to Columbia Gas, plaintiff does not allege that its claims against Columbia Gas arise from that marketing contract as is required by the long-arm statute in order to assert jurisdiction. See D.C. Code 13-423(b) (\"When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.”); Novak-Canzeri v. Al Saud, 864 F.Supp. at 206. . Section 13-334(a) provides that \"[i]n an action against a foreign corporation doing business in the District, process may be served on the agent of the corporation or person conducting its business, or, when he is absent and can not be found, by leaving a copy at the principal place of business in the District, or, where there is no such place of business, by leaving a copy at the place of business or residence of the agent in the District, and that service is effectual to bring the corporation before the court.” D.C. Code § 13-334(a). Although the provision facially concerns service of process, it has been construed to provide a general jurisdictional grant under certain circumstances. See Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 510, n. 1 (D.C.Cir.2002); AMAF Int’l Corp. v. Ralston Purina Co., 428 A.2d 849, 850 (D.C.1981) . With their response to plaintiff's post-argument supplemental brief, defendants provide the declaration of Jonathan T. Young, an employee of Columbia Gas in the Customer Service/Volume Management Unit, to contest much of what Mr. Cory avers. See Defendants’ Reply to Plaintiff's Supplemental Memorandum" }, { "docid": "5098264", "title": "", "text": "is “doing business” in the District of Columbia. FC Inv. Group LC v. IFX Markets, Ltd., 529 F.3d 1087, 1091 (D.C.Cir.2008). If general personal jurisdiction exists, the defendant must appear and answer for any claims, even ones unrelated to its ties to the jurisdiction. “[T]he reach of ‘doing business’ jurisdiction under [D.C. Code] § 13-334(a) is coextensive with the reach of constitutional due process,” which allows general jurisdiction over a foreign corporation only if “the defendant’s business contacts with the forum are ‘continuous and systematic.’ ” Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 510 (D.C.Cir.2002) (citing Helicopteros, 466 U.S. at 415, 104 S.Ct. 1868, and Hughes v. A.H. Robins Co., Inc., 490 A.2d 1140, 1148 (D.C.1985)); see also Roz Trading, Ltd. v. Zeromax Grp., Inc., 517 F.Supp.2d 377, 383 (D.D.C.2007). The plaintiff alleges in her Amended Complaint that the Court has personal jurisdiction over all the defendants, not just Vapiano SE, “because Defendants are doing business in this District through their ownership, licensing, franchising, operation, marketing and/or control of Vapiano restaurants in this District.” Am. Compl. ¶ 10. The Amended Complaint further asserts that “Vapiano SE does business in this District individually and through its agents Vapiano International and Vapiano [USA], which it controls.” Id. Vapiano SE “is also subject to jurisdiction because it solicits franchise business in this District through various mediums including the Va-piano Websites.” Id. Defendant Vapiano SE correctly notes, however, that pursuant to District of Columbia law, general jurisdiction over a foreign corporation requires personal service under D.C. Code § 13-334(a). Vapiano SE Reply Mem., ECF No. 22, at 4-5. In this case, the plaintiff served Vapiano SE under the Hague Service Convention, rather than via personal service. See Pl.’s Mot. Leave File First Am. Compl., ECF No. 10, at 2; Vapiano SE’s Unopposed Mot. Extend Time to Answer, ECF No 14, at 1. “Regardless of whether defendants were ‘doing business in the District,’ plaintiff may not invoke Section 13-334(a) as the basis for personal jurisdiction against a foreign corporation unless the corporation has been served within the District of Columbia.” Rossmann v. Chase Home" }, { "docid": "20804842", "title": "", "text": "case that Petra Bank was “doing business” in the District of Columbia. See D.C.Code Ann. § 13-334(a); Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C.Cir.1991). For general jurisdiction, the Due Process Clause requires that the defendant have “continuous and systematic general business contacts” with the forum. Helicol, 466 U.S. at 416, 104 S.Ct. at 1873; see also Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 438, 72 S.Ct. 413, 414, 96 L.Ed. 485 (1952). El-Fadl asserts the following facts about Petra Bank’s contacts with the District of Columbia: (1) Petra Bank issued a commercial loan of over $500,000 in 1989; (2) in litigation concerning that loan in the D.C. Superior Court, Petra Bank filed a counter-claim; (3) Petra Bank has entered into several “collateral agreements covering loans in the District of Columbia,” using a form contract that selects as the governing law the laws of the District of Columbia; (4) Petra Bank owns 70% of PIBC, its District of Columbia subsidiary, with which Petra Bank maintains bank accounts in the District of Columbia; (5) El-Fadl sent millions of dollars by wire transfers through Petra Bank from PIBC offices in Jordan to PIBC’s main office in the District of Columbia; and (6) in a deposition for another ease, PIBC’s general manager, Randolph Old, stated that Petra Bank had “joint loans” with PIBC and that PIBC acted as Petra Bank’s “collection agent” in the District of Columbia. The allegations concerning the loan, the consequent litigation, and the collateral agreements are mere isolated and sporadic contacts unrelated to the claims in the instant case. By contrast, § 13-334(a) requires a “continuing corporate presence in the forum ... directed at advancing the corporation’s objectives.” AMAF Int’l Corp., 428 A2d at 851; see also Helicol, 466 U.S. at 416-17, 104 S.Ct. at 1873. El-Fadl’s allegations concerning the relationship between PIBC and Petra Bank attempt to attribute the subsidiary’s contacts with the District of Columbia to the parent corporation. Al though a parent-subsidiary relationship alone is insufficient, Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 336-37, 45 S.Ct." }, { "docid": "11835585", "title": "", "text": "without RICO jurisdiction over IFX. For the foregoing reasons, the judgment of the district court is affirmed. So ordered. . Although Titan is not a defendant in this lawsuit, FCIG has obtained a $6.5 million judgment against Titan and its owner, Milan Martinic, in separate litigation. See FC Inv. Group LC v. Titan Global Strategies, LTD, No.2004cv0312 (Wis.Cir.Ct. July 20, 2004). . The precise amount the plaintiffs allege they lost due to Titan’s and IFX’s fraud is unclear. Compare Am. Comp. ¶ 6 (alleging $ 9.5 million in losses) with Am. Comp. ¶¶ 9, 12 (alleging total investment of approximately $ 1 million by Eisenberg and $5 million by FCIG). . The $6.5 million judgment FCIG obtained from Titan and Martinic, see supra note 1, remains unsatisfied. See Appellants’ Br. 13. . They concede that \"IFX apparently has no offices” in the District. Appellants' Mem. in Opp'n 7; see also Decl. of Steven R. Reeves ¶ 5 (IFX \"does not maintain any offices, agents or employees in the District of Columbia.”). . Section 13-334(a) provides: In an action against a foreign corporation doing business in the District, process may be served on the agent of the corporation or person conducting its business, or, when he is absent and can not be found, by leaving a copy at the principal place of business in the District, or where there is no such place of business, by leaving a copy at the place of business or residence of the agent in the District, and that service is effectual to bring the corporation before the court. D.C.Code § 13-334(a). Although section 13-334(a) expressly addresses service of process, the D.C. Court of Appeals has held that section 13-334(a) also grants general personal jurisdiction over \"a foreign corporation which carries on a consistent pattern of regular business activity” within the District. AMAF Int’l Corp. v. Ralston Purina Co., 428 A.2d 849, 850 (D.C.1981); see also Gorman, 293 F.3d at 510 n. 1; El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 673 n. 7 (D.C.Cir.1996). . Regarding the first requirement — an interactive website —" }, { "docid": "19734174", "title": "", "text": "business transacted must be of a “substantial character.” Armco Steel Co., 790 F.Supp. at 319-20 (quoting Chrysler Corp. v. General Motors Corp., 589 F.Supp. at 1195). Plaintiffs have made none of these showings. Plaintiffs do not allege that ChevronTexaco is incorporated in the District of Columbia. In addition, plaintiffs provide no factual support, aside from allegations of ChevronTexaeo’s participation in the 2003 NPC meeting, that ChevronTexa-co engaged in continuous local activities in the District of Columbia. While plaintiffs allege that ChevronTexaco has an office here permanently staffed by a Vice-President, they do not allege additional facts showing that ChevronTexaco directly conducts business in the District of Columbia. See e.g., MCI Commn’cs Corp., 1983 WL 1881, at *3 (granting defendants’ motion to dismiss because plaintiffs failed to establish that defendants were licensed to do business in the District of Columbia). Finally, plaintiffs do not plead that Chevron-Texaco conducted business of a substantial character. See Square D Co. v. Niagara Frontier Tariff Bureau, Inc., Civil Action No. 83-2978, 1984 WL 2929, at *2-3 (D.D.C. Jan.24, 1984) (holding that the totality of defendant’s activities, including the development and publication of tariffs establishing rates for traffic in the District of Columbia and meetings with individuals and organizations in matters relating to those tariffs, were sufficiently of a substantial character). Plaintiffs have not met their burden of showing that Chevron-Texaco is subject to personal jurisdiction in the District of Columbia under the Clayton Act. Accordingly, ChevronTexaco’s motion to dismiss will be granted. IV. NOERR-PENNINGTON “[T]he Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly.” E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). This exemption applies to efforts to influence the political process “regardless of intent or purpose.” United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). “Such con duct is not illegal, either standing" }, { "docid": "19734173", "title": "", "text": "that a local contacts inquiry is required under Section 12 of the Clayton Act....” In re Vitamins Antitrust Litig., 94 F.Supp.2d 26, 31 (D.D.C.2000). To demonstrate inhabitancy in the District of Columbia, a plaintiff must show that the defendant is incorporated here. See MCI Commc’ns Corp. v. Am. Telephone and Telegraph Co., Civil Action No. 79-1182, 1983 WL 1881, at *3 (D.D.C. Oct.4, 1983) (“A corporation is said to be an inhabitant of the state of its incorporation.”); Caribe Trailer Sys., Inc. v. Puerto Rico Mar. Shipping Auth., 475 F.Supp. 711, 716 (D.D.C.1979). A plaintiff must show that a corporation has “presence” and “continuous local activity” in the District of Columbia to establish that it can be found here. See Armco Steel Co. v. CSX Corp., 790 F.Supp. 311, 319 (D.D.C. 1991). Finally, “ ‘[wjhether a defendant has transacted business is largely a factual question to be determined in each case. In making this determination, courts look for tangible manifestations of doing business.’” MCI Commc’ns Corp., 1983 WL 1881, at *4 (internal citation omitted). The business transacted must be of a “substantial character.” Armco Steel Co., 790 F.Supp. at 319-20 (quoting Chrysler Corp. v. General Motors Corp., 589 F.Supp. at 1195). Plaintiffs have made none of these showings. Plaintiffs do not allege that ChevronTexaco is incorporated in the District of Columbia. In addition, plaintiffs provide no factual support, aside from allegations of ChevronTexaeo’s participation in the 2003 NPC meeting, that ChevronTexa-co engaged in continuous local activities in the District of Columbia. While plaintiffs allege that ChevronTexaco has an office here permanently staffed by a Vice-President, they do not allege additional facts showing that ChevronTexaco directly conducts business in the District of Columbia. See e.g., MCI Commn’cs Corp., 1983 WL 1881, at *3 (granting defendants’ motion to dismiss because plaintiffs failed to establish that defendants were licensed to do business in the District of Columbia). Finally, plaintiffs do not plead that Chevron-Texaco conducted business of a substantial character. See Square D Co. v. Niagara Frontier Tariff Bureau, Inc., Civil Action No. 83-2978, 1984 WL 2929, at *2-3 (D.D.C. Jan.24, 1984) (holding" }, { "docid": "5098263", "title": "", "text": "(D.D.C.2010). Indeed, the plaintiffs factual assertions in the Complaint are “presumed to be true unless directly contradicted by affidavit.” DSMC, Inc. v. Convera Corp., 273 F.Supp.2d 14, 20 (D.D.C.2002). B. Discussion Personal jurisdiction is “an essential element of the jurisdiction of a district court, without which the court is powerless to proceed to an adjudication.” Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1086 (D.C.Cir.2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). For the Court to exercise personal jurisdiction over Vapiano SE, this defendant must maintain contacts with the District of Columbia sufficient to support either general jurisdiction or specific jurisdiction under the District of Columbia’s long-arm statute, D.C. Code § 13-423 (2001). See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). 1. The Court Does Not Have General Jurisdiction Over Defendant Vapiano SE The Court may maintain general personal jurisdiction over a foreign corporation, pursuant to D.C. Code § 13-334(a), if the corporation is “doing business” in the District of Columbia. FC Inv. Group LC v. IFX Markets, Ltd., 529 F.3d 1087, 1091 (D.C.Cir.2008). If general personal jurisdiction exists, the defendant must appear and answer for any claims, even ones unrelated to its ties to the jurisdiction. “[T]he reach of ‘doing business’ jurisdiction under [D.C. Code] § 13-334(a) is coextensive with the reach of constitutional due process,” which allows general jurisdiction over a foreign corporation only if “the defendant’s business contacts with the forum are ‘continuous and systematic.’ ” Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 510 (D.C.Cir.2002) (citing Helicopteros, 466 U.S. at 415, 104 S.Ct. 1868, and Hughes v. A.H. Robins Co., Inc., 490 A.2d 1140, 1148 (D.C.1985)); see also Roz Trading, Ltd. v. Zeromax Grp., Inc., 517 F.Supp.2d 377, 383 (D.D.C.2007). The plaintiff alleges in her Amended Complaint that the Court has personal jurisdiction over all the defendants, not just Vapiano SE, “because Defendants are doing business in this District through their ownership, licensing, franchising, operation, marketing and/or control of Vapiano restaurants in this District.”" }, { "docid": "20760264", "title": "", "text": "317, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Under District of Columbia law, courts may exercise general jurisdiction over a foreign corporation like Alliance Bankshares when it is “doing business” in the District of Columbia. D.C.Code § 13-334(a). This provision “has long been used as a means of confer[ring] jurisdiction ... over foreign corporations doing substantial business in the District of Columbia.” Gonzalez v. Internacional de Elevadores, S.A., 891 A.2d 227, 233 (D.C.2006) (quotation marks omitted). The central question is whether the corporation has sustained a “continuing corporate presence” in the District of Columbia with the aim of “advancing [its] objectives.” AMAF Int’l Corp. v. Ralston Purina Co., 428 A.2d 849, 851 (D.C.1981). In the end, general jurisdiction may only be exercised “over a foreign corporation ... if the defendant’s business contacts with the forum district are continuous and systematic.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (quotation marks omitted). In this case, and at this procedural posture, Khatib simply has not shown that Alliance Bankshares’ contacts with the District of Columbia are even arguably so “continuous and systematic” and “substantial” so as to warrant the exercise of general jurisdiction. Preliminarily, however, the Court observes that it is not even clear whether Khatib even intends to make this argument, as his various submissions are devoid of any unambiguous reference to general jurisdiction. Significantly, all of the allegations in Khatib’s Complaint that have any meaningful measure of specificity plainly relate to a dispute between Virginia residents over real property located in Virginia and agreements that were negotiated, executed, and performed in Virginia. True, Khatib alleges that Alliance Bank-shares “transacts business and solicits business in the District of Columbia” and “engages in lending activities in the District of Columbia,” Compl. ¶¶ 6-7, but it is well-established that “eonclusory statements” of this kind are insufficient to establish a factual basis for the exercise of personal jurisdiction, GTE New Media Servs., 199 F.3d at 1349. Additionally, Khatib offers a handful of allegations that devolve into the vague assertion that Alliance Bankshares has contacts" }, { "docid": "19734165", "title": "", "text": "to meet their burden of establishing that Chev-ronTexaco is subject to the court’s jurisdiction. (ChevronTexaco Corp.’s Mot. to Dismiss at 13.) Plaintiffs argue that ChevronTexaco is subject to this court’s jurisdiction because ChevronTexaco has an office located in the District of Columbia permanently staffed by a Vice-President, and because of ChevronTexaco’s participation in the 2002-2003 NPC meeting in the District of Columbia which forms the basis of plaintiffs’ complaint. (Pis.’ Opp’n at 37.) These facts are insufficient to meet plaintiffs’ burden of establishing a prima facie case of personal jurisdiction under either the District’s jurisdictional statutes or Section 12 of the Clayton Act. A. Due Process and the District of Columbia long-arm, statute “To establish personal jurisdiction over a non-resident, a court must engage in a two-part inquiry: A court must first examine whether jurisdiction is applicable under the state’s long-arm statute and then determine whether a finding of jurisdiction satisfies the constitutional requirements of due process.” GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.Cir.2000) (citing United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995)). Plaintiffs’ arguments can reasonably be read to assert jurisdiction under both the District of Columbia’s general jurisdiction statute and its specific jurisdiction statute. (2d Supp. Compl. ¶ 2; Pis.’ Opp’n at 37.) 1. General jurisdiction The District of Columbia’s general jurisdiction statute, D.C.Code § 13-334(a), “authorizes the courts in this jurisdiction to ‘exercise “general jurisdiction” over a foreign corporation as to claims not arising from the corporation’s conduct in the District, if the corporation is doing business in the District.’ ” AGS Int’l Servs. S.A. v. Newmont USA Ltd., 346 F.Supp.2d 64, 74 (D.D.C.2004) (quoting Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509 (D.C.Cir.2002)). Because “[t]he ‘doing business’ test of this [statute] was found by the District of Columbia Circuit to be coextensive with the due process requirements of the Constitution[,]” the test for general jurisdiction is whether Chevron-Texaco’s contacts with the District have been “so continuous and systematic that it could foresee being haled into court in the District of Columbia.” Newmont USA Ltd., 346 F.Supp.2d at 74." }, { "docid": "10945631", "title": "", "text": "GOVERNMENT CONTACTS EXCEPTION Both federal and local trial and appellate courts in this district have recognized a “government contacts” exception to personal jurisdiction. Under that doctrine, a defendant’s relationships with federal agencies do not enter the calculus of minimum contacts with the District of Columbia for jurisdictional purposes. Mueller Brass Co. v. Alexander Milburn Co., 152 F.2d 142 (D.C.Cir.1945). In Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808 (D.C.1976), the District of Columbia Court of Appeals considered the “long standing and still vital doctrine that entry into the District of Columbia by non-residents for the purpose of contacting federal governmental agencies is not a basis for the assertion of in personam jurisdiction.” Id. at 813 (citations omitted). The Court further explained that, [T]o permit our local courts to assert personal jurisdiction over non-residents whose sole contact with the District consists of dealing with a federal instrumentality not only would pose a threat to free public participation in government, but also would threaten to convert the District of Columbia into a national judicial forum. Id. (citations omitted). In Fandel v. Arabian American Oil Company, 345 F.2d 87 (D.C.Cir.1965), a husband and wife who were residents of California sued a Delaware corporation which had its place of business in New York City for injuries sustained by the husband in Saudi Arabia. The United States Court of Appeals agreed that the District Court lacked personal jurisdiction over the defendant company. The defendant produced, refined and sold gas in Saudi Arabia and delivered the major portion of its product in Saudi Arabia; it did not solicit business, by advertising, or otherwise, in the District of Columbia and made no business contracts here. The Court recognized that while defendant maintained an office here for the purposes of receiving and transferring information, which was a significant element in its “diplomatic and intelligence apparatus,” id. at 88, the presence of the office could not serve as a basis for exercising personal jurisdiction. The Court concluded that, ... Washington presents many business organizations with special needs for a continuous and ponderable presence here, which" }, { "docid": "16464073", "title": "", "text": "WL 58466 at *6 (D.D.C. Mar. 27, 1990)1990 U.S. Dist. LEXIS 3521, at *21; Chrysler Corp. v. General Motors Corp., 589 F.Supp. at 1195. The Court should look for “tangible manifestations of doing business” in the District, such as the presence of officers, employees, agents, offices, ownership of property, maintenance of corporate records or bank accounts. Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. at 716. Incorporating the Court’s discussion and conclusion that the plaintiff has not alleged facts demonstrating that the defendants transacted business sufficient to establish jurisdiction under the District of Columbia long-arm statute, see supra at 43-48, the Court necessarily also concludes that plaintiff has not alleged any facts that demonstrate any “tangible manifestations of doing business” in the District of Columbia, or any other basis on which the Court could find that any of the defendants transacted business of a “substantial character.” In addition, plaintiff does not argue that it has alleged any additional contacts unrelated to the claims in the amended complaint on which the Court could rest personal jurisdiction under the Clayton Act. Plaintiffs’ claim that jurisdiction exists over defendants under the Clayton Act thus fails. E. General Jurisdiction Pursuant to Section 13-S3I(a) of the D.C.Code In its post-argument supplemental brief, plaintiff asserts that the Court has jurisdiction over Columbia Gas pursuant to the general jurisdictional grant of Section 13 — 334(a) of the District of Columbia Code. Under the doctrine of general jurisdiction, a court may exercise personal jurisdiction over a non-resident defendant when that non-resident defendant has engaged in “continuous and systematic general business contacts” in the forum, notwithstanding the fact that those contacts do not relate to the underlying cause of action. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); see also Gorman v. Ameritrade Holding Corp., 293 F.3d at 509; El-Fadl v. Central Bank of Jordan, 75 F.3d at 675. Jurisdiction under Section 13-334(a) requires that such systematic contacts demonstrate “a ‘continuing corporate presence in the forum ... directed at advancing the corporation’s objectives.’ ” El-Fadl" }, { "docid": "19734167", "title": "", "text": "“However, some presence in the District of Columbia is not alone grounds to exercise general jurisdiction in every situation.” Id. According to plaintiffs, ChevronTexaco “has a corporate office in the District of Columbia at 1401 I Street, N.W., at which it has a Vice President permanently assigned.” (Pis.’ Opp’n at 37.) Plaintiffs report, though, that they unsuccessfully attempted to serve ChevronTexaco at that office and service was eventually accepted in an office in California. (Id.) The facts provided by plaintiffs fail to establish a sufficient “factual basis for the court’s exercise of personal jurisdiction,” Arista Records, 314 F.Supp.2d at 30, within the meaning of D.C.Code § 13-334(a). Plaintiffs have failed to provide any information showing what if any business ChevronTexaco conducts in its office in the District of Columbia. Such facts are necessary to determine if ChevronTex-aco’s activity in its District of Columbia office is the “type of contact worthy of consideration for jurisdictional purposes under § 13—334(a).” Newmont USA Ltd., 346 F.Supp.2d at 76 (holding that federal district court did not have personal jurisdiction over foreign corporation whose only contact with the District was an office engaged in federal governmental liaison activities); see Fandel v. Arabian Am. Oil Co., 345 F.2d 87 (D.C.Cir.1965) (same). Because plaintiffs have failed to allege specific facts regarding the nature of ChevronTexaco’s business activity in its District of Columbia office, plaintiffs have failed to meet their burden of establishing that ChevronTexaco is subject to the court’s jurisdiction under the District of Columbia’s general jurisdiction statute. 2. Specific jurisdiction Under the District of Columbia’s long-arm statute, a court in the District of Columbia may exercise personal jurisdiction over a person outside the District if the plaintiffs claim arises from the defendant’s “transacting any business in the District of Columbia.” D.C.Code § 13-423(a)(1). Like the District of Columbia’s general jurisdiction statute, “[sjection (a)(l)’s ‘transacting any business’ clause generally has been interpreted to be coex- tensive with the Constitution’s due process requirements and thus to merge into a single inquiry.” GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d at 1347. “While general personal jurisdiction permits" }, { "docid": "585060", "title": "", "text": "relationship is one of the centerpieces of the alleged conspiracy. Without it, Dooley claims, the conspiracy which ultimately caused his demotion might never have existed. The Court finds these allegations sufficient to establish the plaintiff’s prima facie case as to the Smith Defendants. The Smith Defendants’ central argument against the assertion of personal jurisdiction is that any contacts between Olin Smith and Ambassador Bandar cannot be considered under the government contacts exception. They argue that the Court of Appeals, in Fandel v. Arabian Am. Oil Co., 345 F.2d 87 (D.C.Cir.1965), concluded that a defendant’s contact with a foreign embassy qualify as government contacts. Smith Defendants' Motion at 6. However, the Court’s opinion in Fandel does not support this conclusion. In Fandel, the Court held that a foreign corporation’s activity in Washington, D.C., which included advising the State Department, other executive agencies of the United States, educational and international organizations, as well as diplomatic missions, on the Middle East, did not constitute “doing business” in the District of Columbia. Fandel, 345 F.2d at 88-89. The Court focused on the fact that the defendant’s contacts with the District were of a diplomatic rather than business nature. Id. at 89. Thus, the Court did not single out, as the defendants suggest, contacts with foreign embassies as outside the jurisdictional analysis. On the contrary, the Court specifically distinguished the facts from those in Ñapeo, noting that the defendant’s situation “[was] not quite like the company whose agents in Washington are seeking contracts, either with our own Government or with other governments represented in Washington.” Id. [citation omitted] 4. Defendant Westland, Inc. a. Direct Contacts With The Forum Westland, Inc. is a Delaware corporation with its office in Arlington, Virginia. Plaintiff Dooley asserts that long-arm jurisdiction under § 13-423(a)(l) extends to Westland, Inc.’s contacts with this forum. In the plaintiff’s Opposition to Westland, Inc.'s motion to dismiss, Dooley asserts three types of contacts by Westland, Inc. with the District during the relevant period: first, lobbying Prince Bandar at the Saudi Embassy; second, lobbying Congress on an amendment (“Amendment 4”) to the licensing agreement between UTC" }, { "docid": "9384587", "title": "", "text": "Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). As discussed below, the plaintiffs have not yet made a prima facie showing of either general or specific jurisdiction over BAC under the D.C.Code. However, the plaintiffs have not had the benefit of formal discovery, and, therefore, they shall be permitted sixty days irom the date of the Order accompanying this Opinion within which to obtain the necessary jurisdictional facts or else dismiss this lawsuit against BAC. Additionally, the plaintiffs, have not pled any jurisdictional facts with respect to the individual defendants, nor have they attempted to supplement the allegations in their complaint with such facts. Therefore, the individual defendants shall be dismissed from this ease, without prejudice. As with BAC, the plaintiffs shall have sixty days to obtain the necessary jurisdictional facts or else dismiss the lawsuit with respect to the individuals. 1. The Court Does Not Have General Personal Jurisdiction Over BAC Under D.C.Code § 13-422. The plaintiffs do not claim that BAC is domiciled in, organized under the laws of, or maintaining its principal place of business in the District. Moreover, it appears from the second Bulliner affidavit proffered by the defendants that BAC is not domiciled in, organized under the laws of, or maintaining its principal place of business in, the District of Columbia. See second Bulliner Aff. at ¶ 2. Thus, this Court does not have general personal jurisdiction under D.C.Code Ann. § 13-22(1995). 2. The Court May Have General Personal Jurisdiction Over BAC Pursuant To D.C.Code § 13-334(a), But The Plaintiffs Have Not Yet Made A Prima Facie Showing. To support a finding of general jurisdiction over BAC, section 13-334(a) of the D.C.Code demands a “ ‘continuing corporate presence in the forum ... directed at advancing the corporation’s objectives.’” El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 675 (D.C.Cir.1996) (quoting AMAF Int’l Corp. v. Ralston Purina Co., 428 A.2d 849, 851 (D.C.1981)). In essence, the plaintiffs have argued that BAC has continuing contacts with the District through its own conduct and through the conduct of its D.C. subsidiaries which, the" }, { "docid": "21742249", "title": "", "text": "“doing business” in the District as a result of its relationship with and receipt of funding from the International Finance Corporation (“IFC”), a component of the World Bank, which is located in the District; its dealings with foreign embassies in the District; and the leadership positions several of the employees have held in several trade associations located in the District. Pis.’ Opp. at 6-8. The plaintiffs also maintain that despite Ms. Donnelly’s statements that Newmont USA does not do business in the District, she does not “unequivocally aver the absence of Newmont’s activities in the District, presently or in the past,” which demonstrate Newmont USA’s District of Columbia contacts. Id. at 5. Defendant Newmont USA, on the other hand, argues that general jurisdiction does not exist in the District of Columbia because “the mere presence of a single representative of a corporation who is limited to one type of activity does not ordinarily confer jurisdiction over the corporation as to matters unrelated to those activities.” Newmont’s Mem. at 8 (citing Palmer v. Kawaguchi Iron Works, Ltd., 644 F.Supp. 327, 331 (N.D.Ill.1986) (mere presence of single employee who performed single type of activity insufficient to confer jurisdiction)). Newmont USA contends that its two room office rented from the law firm of Shea & Garner and staffed only by Ms. Donnelly, coupled with the activities she performs, does not amount to “continuous and systematic” contact with the District. Id. Newmont USA also posits that Ms. Donnelly’s duties are to act as a liaison between Newmont USA and the federal government, and on occasion foreign embassies, not to sale or market Newmont USA products. Id. On this record, the Court concludes that Newmont USA is not subject to general jurisdiction in the District of Columbia for the following reasons. Its office operations here do not amount to the kind of presence intended to fall within the scope of D.C.Code § 13-334(a). Newmont USA’s District of Columbia office operations are analogous to the defendants’s activities in Fandel, where a six room office maintained for virtually the same reasons as Newmont USA — to interact" }, { "docid": "10945632", "title": "", "text": "judicial forum. Id. (citations omitted). In Fandel v. Arabian American Oil Company, 345 F.2d 87 (D.C.Cir.1965), a husband and wife who were residents of California sued a Delaware corporation which had its place of business in New York City for injuries sustained by the husband in Saudi Arabia. The United States Court of Appeals agreed that the District Court lacked personal jurisdiction over the defendant company. The defendant produced, refined and sold gas in Saudi Arabia and delivered the major portion of its product in Saudi Arabia; it did not solicit business, by advertising, or otherwise, in the District of Columbia and made no business contracts here. The Court recognized that while defendant maintained an office here for the purposes of receiving and transferring information, which was a significant element in its “diplomatic and intelligence apparatus,” id. at 88, the presence of the office could not serve as a basis for exercising personal jurisdiction. The Court concluded that, ... Washington presents many business organizations with special needs for a continuous and ponderable presence here, which needs are not those customarily associated with strictly commercial operations ... [T]he purpose of Congress was not to make that presence in every case a base for the assertion of personal jurisdiction. Id. at 89. In Traher v. DeHavilland Aircraft of Canada, Ltd., 294 F.2d 229, 230 (D.C.Cir.1961), cert. denied, 368 U.S. 954, 82 S.Ct. 397, 7 L.Ed.2d 387 (1962), this Circuit found that the District Court lacked personal jurisdiction because defendants sole agent in the District only solicited orders from the government in this district and was without authority to accept orders from any source or to execute contracts on defendant’s behalf. The Court concluded that service of process on this employee must be quashed since plaintiff’s personal injury suit, which it premised on defendant’s negligence, had no connection with defendant’s activities in the district. Id. at 230. This District Court in Siam Kraft Paper Co., Ltd. v. Parsons & Whittemore, Inc., 400 F.Supp. 810 (D.D.C.1975), held that it lacked personal jurisdiction over defendant whether it analyzed its government contacts or its private commercial" } ]

[ { "docid": "22852481", "title": "", "text": "Barfield v. N.Y. City Health & Hosps. Corp., 2006 WL 2356152, at *1, *3. In Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 522 F.3d 182 (2d Cir.2008), this court recently traced the evolution of this two-step process and the confusion sometimes attending its application before concluding that the “lodestar” metaphor should be abandoned, see id. at 190. Henceforth, we have advised district courts, in exercising their “considerable discretion ... to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney’s fees in setting a reasonable hourly rate” to be used in calculating a “ ‘pre sumptively reasonable fee.’ ” Id. (emphasis in original). The district court in this case, operating without the benefit of the Arbor Hill decision, did not employ its specific technique for determining a presumptively reasonable fee, but that is not a concern on this appeal where plaintiff does not challenge the lodestar calculation but only the 50 percent reduction applied to it. In considering Barfield’s fee challenge, we are mindful of the Supreme Court’s observation that “the most critical factor” in a district court’s determination of what constitutes reasonable attorney’s fees in a given case “is the degree of success obtained” by the plaintiff. Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); accord Kassim, v. City of Schenectady, 415 F.3d 246, 254 (2d Cir.2005); Pino v. Locascio, 101 F.3d 235, 237-38 (2d Cir.1996). Barfield asserts that no fee reduction for lack of success was warranted in her case because she did, in fact, succeed on the single FLSA claim alleged in her complaint. She submits that a motion for FLSA collective action certification is not a claim and, thus, failure on such a motion does not support a fee reduction. We are not persuaded. A district court’s assessment of the “degree of success” achieved in a case is not limited to inquiring whether a plaintiff prevailed on individual claims. See Kassim v. City of Schenectady, 415 F.3d at 254. Both “the quantity and quality of" } ]

[ { "docid": "9028850", "title": "", "text": "v. Metro-North R.R. Co. , 658 F.3d 154, 166 (2d Cir. 2011) (lodestar calculation creates \"presumptively reasonable fee\" (internal quotation marks omitted) ) (citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany , 522 F.3d 182, 183 (2d Cir. 2008) & Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) ). There is a strong presumption that the lodestar represents the appropriate award, although courts have the discretion to enhance or reduce the lodestar in rare and exceptional circumstances. ( Id. ) The party seeking fees bears the burden of demonstrating that the fees are reasonable, see Hugee v. Kimso Apartments, LLC , 852 F.Supp.2d 281, 298 (E.D.N.Y. 2012) (citing Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ), and the party's fee application must be supported by contemporaneous time records that \"[specify], for each attorney, the date, the hours expended, and the nature of the work done,\" Marion S. Mishkin Law Office v. Lopalo , 767 F.3d 144, 148 (2d Cir. 2014) (citing New York State Ass'n for Retarded Children, Inc. v. Carey , 711 F.2d 1136, 1148 (2d Cir. 1983) ). An attorney's hourly rate is considered reasonable when it is \"in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.\" Blum v. Stenson , 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ; see also Rosado v. City of New York , No. 11cv4285 (SAS), 2012 WL 955510, at *4 (S.D.N.Y. Mar. 15, 2012) (\"The relevant community to which the court should look is the district in which the case is brought.\"). Although the fee applicant has the burden of demonstrating prevailing market rates for comparable work, see Broome v. Biondi , 17 F.Supp.2d 230, 237 (S.D.N.Y. 1997), the Court may also apply its \"own knowledge\" of rates charged in the community in assessing the reasonableness of the rates sought. Miele v. New York State Teamsters Conf. Pension & Ret. Fund , 831 F.2d" }, { "docid": "17978259", "title": "", "text": "claims on which the plaintiff failed to succeed are distinct, factually and legally, from claims upon which the plaintiff did succeed. See Hensley v. Eckerhart, 461 U.S. at 434-35, 103 S.Ct. 1933. Moreover, if a plaintiff has obtained only nominal damages when he or she has sought only monetary and not equitable relief, an award of attorneys’ fees is ordinarily not appropriate. See Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Pino v. Locascio, 101 F.3d 235, 238-39 (2d Cir.1996). “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. 1933. The rates to be used in calculating the starting point, often called the “lodestar,” see, e.g., Quaratino v. Tiffany & Co., 166 F.3d 422, 423-24 & n. 1 (2d Cir.1999), are the market rates “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” See Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir.1998) (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The party seeking fees has the duty to provide evidence of the hours expended and the rates claimed. See, e.g., Lewis v. Coughlin, 801 F.2d 570, 577 (2d Cir.1986); New York State Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983). Time spent preparing the fee application itself is properly included in the lodestar calculation. See, e.g., Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1183-84 (2d Cir.1996). The lodestar may be reduced to the extent the plaintiff was unsuccessful on claims that were distinct from those on which the plaintiff prevailed or if the plaintiffs degree of success on interrelated claims was limited. Hensley v. Eckerhart, 461 U.S. at 435-36, 103 S.Ct. 1933. Conversely, the lodestar may be increased if the attorney’s efforts have achieved exceptional success. Id. at 435, 103 S.Ct. 1933. The above principles are easily applied in this case." }, { "docid": "21094343", "title": "", "text": "Fletcher, 143 F.3d 748, 764 (2d Cir.1998) (citations omitted). Plaintiffs have the burden of submitting evidence supporting the hours worked and rates claimed. Hensley, 461 U.S. at 433, 103 S.Ct. 1933. If the documentation is inadequate, for example, if it reflects excessive or redundant time, the court may reduce the award accordingly. Id. at 433-34, 103 S.Ct. 1933. The Court will first determine plaintiffs’ attorneys’ reasonable hourly rates. It will then decide how many hours were reasonably expended on the litigation and consider whether any reduction in the lodestar amount is warranted. A. Calculating the Reasonable Hourly Rate In determining the reasonable hourly rate to be applied, the Court should look to market rates “ ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’ ” Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir.1998) (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The relevant community to which the court should look is the district in which the case was brought. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir.1987). The rates used by the Court should be “ ‘current rather than historic hourly rates.’ ” Gierlinger, 160 F.3d at 882 (quoting Missouri v. Jenkins, 491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)). Furthermore, non-profit civil rights attorneys should receive a “ ‘fully compensatory fee,’ ” Jenkins, 491 U.S. at 286, 109 S.Ct. 2463 (quoting Hensley, 461 U.S. at 435, 103 S.Ct. 1933), “comparable to what ‘is traditional with attorneys compensated by a fee-paying client.’” Id. (quoting S.Rep. No. 94-1011, p. 6 (1976), U.S.Code Cong. & Admin. News 1976, pp. 5908, 5913); see also Blum, 465 U.S. at 895, 104 S.Ct. 1541 (“The statute and legislative history establish that ‘reasonable fees’ under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.”). Plaintiffs are also entitled to seek fees for paralegal services. See Jenkins, 491 U.S. at 286-87, 109 S.Ct." }, { "docid": "8253464", "title": "", "text": "otherwise unnecessary” hours from the lodestar calculation. Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir.2009) (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933); accord Luciano, 109 F.3d at 116 (“If the district court concludes that any expenditure of time was unreasonable, it should exclude these hours from the lodestar calculation.”). “In making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.” Gierlinger, 160 F.3d at 876 (quoting DiFilippo, 759 F.2d at 236). “Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. District courts are authorized “to make across-the-board percentage cuts in hours as a practical means of trimming fat from a fee application.” Green v. City of New York, 403 Fed.Appx. 626, 630 (2d Cir.2010) (quoting In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir.1987)). In Hanski’s initial declaration, he seeks compensation for a total 134.5 hours of attorney time, 7.5 hours of travel time, and 5.3 hours spent on ministerial activities, in litigating Hugee’s case. Hanski Dec. In his supplemental declaration, Han-ski seeks reimbursement for an additional 15.8 hours of attorney time and 0.4 hours spent on ministerial activities in relation to the instant motion for attorney’s fees. Hanski Supp. Dec., ECF No. 33. As mentioned above, Hanski will not be compensated for ministerial activities. Thus, the 5.3 hours from his initial declaration, and the 0.4 hours from his supplemental declaration, will be excluded from the fee award. In addition, entry # 104 from Hanski’s initial declaration — -1.5 hours for “pick up transcript for 1-05-12 hearing (reporter leaving on holiday and req’d check)” (capitalization omitted) — and entry # 5 from Hanski’s supplemental declaration — 0.9 hours for “prepared motion for filing and ECF file motion with exhibits” — similarly should have been classified as ministerial time, and are hereby excluded." }, { "docid": "20535319", "title": "", "text": "of Albany, 42 F.3d 131, 134 (2d Cir.1994). The critical inquiry is “whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992) (citation omitted), cert. denied, 506 U.S. 1053, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993); accord Nike, Inc. v. Top Brand Co., 2006 WL 2946472, at *5 (S.D.N.Y. Feb. 27, 2006) (Report and Recommendation), adopted by 2006 WL 2884437 (S.D.N.Y. Oct. 6, 2006). If a court finds that claimed hours are “excessive, redundant, or otherwise unnecessary,” it should exclude those hours from its “lodestar” calculation. Hensley, 461 U.S. at 434, 103 S.Ct. 1933; accord Quaratino v. Tiffany & Co., 166 F.3d 422, 426 n. 6 (2d Cir.1999); Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998); Luciano v. Olsten Corp., 109 F.3d 111, 116-17 (2d Cir.1997); In re Stock Exchs. Options Trading Antitrust Litig., 2006 WL 3498590, at *11 (S.D.N.Y. Dec. 4, 2006). Additionally, in cases where the documentation of hours is “vague or incomplete,” the court may also reduce the award. E.g., Rosso v. Pi Mgmt. Assocs., 2006 WL 1227671, at *2 (S.D.N.Y. May 3, 2006) (citing In re Painewebber Ltd. P’ships Litig., 2003 WL 21787410, at *4 (S.D.N.Y. Aug. 4, 2003)). However, the Supreme Court noted in Hensley that “[t]here is no precise rule or formula for making these determinations.” 461 U.S. at 436, 103 S.Ct. 1933. And, because “it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application,” Carey, 711 F.2d at 1146, “the court has discretion simply to deduct a reasonable percentage of the number of hours claimed ‘as a practical means of trimming fat from a fee application,’ ” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir.1998) (quoting Carey, 711 F.2d at 1146). Thus, a district court is not required to “set forth item-by-item findings concerning what may be countless objections to individual billing items.” Lunday, 42 F.3d at 134. Here, Miroglio has submitted copies of contemporaneous time records, and seeks a total of 118 hours." }, { "docid": "2229883", "title": "", "text": "the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). “Both [the Second Circuit] and the Supreme Court have held that the lodestar— the product of a reasonable hourly rate and the reasonable number of hours required by the case — creates a ‘presumptively reasonable fee.’ ” Millea, 658 F.3d at 166 (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir.2008); Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010)). “A detailed explanation of the lodestar calculation is unnecessary, but compliance with the Supreme Court’s directive that fee award calculations be ‘objective and reviewable,’ implies the district court should at least provide the number of hours and hourly rate it used to produce the lodestar figure.” Id. at 166-67 (citing Perdue, 130 S.Ct. at 1674). “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437, 103 S.Ct. 1933. I. Attorneys’ Fees A. Reasonableness of Hourly Rates In determining whether the requested hourly, rate is reasonable, a court must analyze whether the “requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Thus, “the court uses the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee.” Weather v. City of Mount Vernon, No. 08 Civ. 192, 2011 WL 2119689, at *2 (S.D.N.Y. May 27, 2011) (internal quotation-marks and citations omitted). “Courts- should rely on both evidence submitted by the parties as to the rates they typically charge, and [the court’s] own knowledge of comparable rates charged by lawyers in the district.” Id. (internal quotation marks and citations omitted). Moreover, “current rates, rather than historical rates, should be applied in order to compensate for the delay in payment[.]” LeBlanc-Sternberg," }, { "docid": "20535318", "title": "", "text": "182 (2d Cir.2008), “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate.” Id. at 186 (quoting Hensley, 461 U.S. at 433, 103 S.Ct. 1933). This figure has commonly been referred to as the “lodestar” — a term that Arbor Hill eschews in favor of the term “presumptively reasonable fee.” Id. at 183. A. Reasonable Hours It is well-established that “any attorney ... who applies for court-ordered compensation in this Circuit ... must document the application with contemporaneous time records ... specifying], for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983). The Court’s task is to make “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir.1994). The critical inquiry is “whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992) (citation omitted), cert. denied, 506 U.S. 1053, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993); accord Nike, Inc. v. Top Brand Co., 2006 WL 2946472, at *5 (S.D.N.Y. Feb. 27, 2006) (Report and Recommendation), adopted by 2006 WL 2884437 (S.D.N.Y. Oct. 6, 2006). If a court finds that claimed hours are “excessive, redundant, or otherwise unnecessary,” it should exclude those hours from its “lodestar” calculation. Hensley, 461 U.S. at 434, 103 S.Ct. 1933; accord Quaratino v. Tiffany & Co., 166 F.3d 422, 426 n. 6 (2d Cir.1999); Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998); Luciano v. Olsten Corp., 109 F.3d 111, 116-17 (2d Cir.1997); In re Stock Exchs. Options Trading Antitrust Litig., 2006 WL 3498590, at *11 (S.D.N.Y. Dec. 4, 2006). Additionally, in cases where the documentation of hours is “vague or incomplete,” the court" }, { "docid": "4242592", "title": "", "text": "S.Ct. 1933. Hours that are excessive, redundant, or otherwise unnecessary should be excluded from the lodestar calculation. Kirsch, 148 F.3d at 173. “The task of determining a fair fee requires a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir.1994) (remanding award of attorneys’ fees and directing the magistrate judge to review critically counsel’s time records). The Court must examine the hours expended by counsel and the value of the work product of the particular expenditures to the client’s case. Efforts put into research, briefing and the preparation of a case can expand to fill the time available, and some judgment must be made in the awarding of fees as to diminishing returns from such further efforts.... In making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties. Gierlinger, 160 F.3d at 876 (quoting DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d Cir.1985)). The Second Circuit has farther directed that if the district court determines that certain hours are not deserving of compensation, it must state the reasons for excluding those hours “as specifically as possible.” LeBlanc-Sternberg, 143 F.3d at 764 (internal quotations omitted); Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir.1997). “The product of reasonable hours times a reasonable rate does not end the inquiry.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. There are other considerations that may lead a court to adjust the fee upward or downward. Id. The lodestar figure may be adjusted on the basis of the “results obtained.” Id. “Indeed, ‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’ ” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). “This factor is particularly crucial" }, { "docid": "16122003", "title": "", "text": "132 F.Supp.2d 239, 245 (S.D.N.Y.2001). i. Lodestar Calculation Courts typically use a “lodestar” figure as an initial estimate of reasonable attorneys’ fees. This figure is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for each attorney or paralegal involved. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992) (citing Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)). Thus, using the lodestar approach, the Court assesses the reasonableness of the number of hours expended, as well as the reasonableness of the requested rates. Under § 1988, plaintiffs are entitled to reasonable hourly rates that fall within the prevailing marketplace rates “in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The relevant community for a fee determination is the judicial district in which the trial court sits—here, the Southern District of New York. In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir.1987). In addition to looking at prevailing marketplace rates, the Court may rely on its own knowledge of comparable rates charged by lawyers in the district. Ramirez v. New York City Off-Track Betting Corp., No. 93 Civ. 0682, 1997 WL 160369, at *2 (S.D.N.Y. Apr.3, 1997). ii. Adjustments Although there is a “strong presumption” that the lodestar figure represents a reasonable fee, City of Burlington v. Hague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), “[t]he product of reasonable hours times a reasonable rate does not end the inquiry.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Other considerations may lead to an upward or downward departure from the lodestar. Id. “ ‘[T]he most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’ ” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933); N.A.A.C.P. v. Town of East Haven, 259 F.3d 113, 117 (2d Cir.2001). The" }, { "docid": "2229898", "title": "", "text": "based on the unsuccessful claims. PL’s Mem. L. at 3-6. Elting further argues that his attorneys should recover a fully compensatory fee because he obtained “excellent results.”\" PL’s Reply Br. at 1 (citing G.B. ex rel. N.B., 894 F.Supp.2d at 425). Elting contends that the proper inquiry is “not whether plaintiff has succeeded on evéry motion or every claim, but whether such action by the attorney was reasonably undertaken.” Id. (citing Gierlinger v. Gleason, 160 F.3d 858, 880 (2d Cir.1998); Marisol A. ex rel. Forbes v. Giuliani, 111 F Supp.2d 381, 393 (S.D.N.Y.2000)). The Second Circuit has “clearly adopted the view ... that a district judge’s authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiffs ‘partial or limited success’ is not restricted either to cases of multiple, discrete theories or to cases in which the plaintiff won only a nominal or technical victory.” Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d Cir. 2005), Where a plaintiffs lawsuit was based on a common nucleus of facts, the Second Circuit has “affirmed district court reductions of a lodestar fee by reason of the plaintiffs limited degree of success.” Id. at 255 (discussing Green v. Torres, 361 F.3d 96 (2d Cir.2004); Abrahamson v. Bd. of Educ.; 374 F.3d 66 (2d Cir.2004)). “The district court may attempt to identify specific hours, that should be eliminated, or it may simply reduce the award to account for the limited success.” Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933. In Green v. Torres, a plaintiff sued thé City of New York and five police officers, alleging claims of false arrest and mali cious prosecution. The plaintiff voluntarily dropped certain claims prior to trial, and subsequently, received a judgment in his favor for $50,000 and punitive damages in the amount of $8508. 361 F.3d at 98. The Second Circuit affirmed the district court’s decision to reduce the lodestar by twenty percent because the “plaintiff had pursued inflated claims ... to the eve of trial[,]” and “the only claims that were ever likely to prevail were those against" }, { "docid": "9274826", "title": "", "text": "intended to \"produce[ ] an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.\" Perdue , 559 U.S. at 551, 130 S.Ct. 1662 (citations omitted; emphasis in original); see also Bergerson v. N.Y. State Office of Mental Health , 652 F.3d 277, 289-90 (2d Cir. 2011) (\"A reasonable hourly rate is what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively\") (internal quotation marks and citations omitted). A reasonable rate is generally the \"prevailing market rate[ ] for counsel of similar experience and skill to the fee applicant's counsel.\" Farbotko v. Clinton County , 433 F.3d 204, 209 (2d Cir. 2005). In deciding what constitutes a reasonable rate, a court may consider \"rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district.\" Id. \"The relevant community to which the court should look is the district in which the case was brought.\" Marisol A. ex rel. Forbes v. Giuliani , 111 F.Supp.2d 381, 386 (S.D.N.Y. 2000). In calculating the reasonable number of hours expended \"the court takes account of claimed hours that it views as 'excessive, redundant, or otherwise unnecessary.' \" Bliven v. Hunt , 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley , 461 U.S. at 434, 103 S.Ct. 1933 ). In so doing, the court \"may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.\" DiFilippo v. Morizio , 759 F.2d 231, 236 (2d Cir. 1985). Finally, \" 'the most critical factor' ... 'is the degree of success obtained' by the plaintiff.\" Barfield v. New York City Health and Hosps. Corp. , 537 F.3d 132, 152 (2d Cir. 2008) (quoting Farrar v. Hobby , 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ). Where \"a plaintiff has achieved only partial or limited success," }, { "docid": "9274827", "title": "", "text": "the court should look is the district in which the case was brought.\" Marisol A. ex rel. Forbes v. Giuliani , 111 F.Supp.2d 381, 386 (S.D.N.Y. 2000). In calculating the reasonable number of hours expended \"the court takes account of claimed hours that it views as 'excessive, redundant, or otherwise unnecessary.' \" Bliven v. Hunt , 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley , 461 U.S. at 434, 103 S.Ct. 1933 ). In so doing, the court \"may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.\" DiFilippo v. Morizio , 759 F.2d 231, 236 (2d Cir. 1985). Finally, \" 'the most critical factor' ... 'is the degree of success obtained' by the plaintiff.\" Barfield v. New York City Health and Hosps. Corp. , 537 F.3d 132, 152 (2d Cir. 2008) (quoting Farrar v. Hobby , 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ). Where \"a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount,\" even if plaintiff's \"claims were interrelated, nonfrivolous, and raised in good faith.\" Hensley , 461 U.S. at 436, 103 S.Ct. 1933 (\"Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.\"). \"Hours spent on unsuccessful fee-shifting claims ... must be excluded from the reasonable hours spent on the case when calculating the lodestar.\" Millea , 658 F.3d at 168 ; see also Quaratino v. Tiffany & Co. , 166 F.3d 422, 425 (2d Cir. 1999) (excluding \"hours dedicated to severable unsuccessful claims\") (citation omitted). Attorneys' fees may be awarded for unsuccessful claims as well as successful ones, however, where they are \"inextricably intertwined and involve a common core of facts or are based on related legal theories.\" Quaratino , 166 F.3d at" }, { "docid": "2229897", "title": "", "text": "F.Supp. 1056, 1060 (S.D.N.Y. 1992) (citations omitted). Courts may reduce the fee award requested in some circumstances, such as when plaintiffs submit deficient or incomplete billing records, see Hensley, 461 U.S. at 437 n. 12, 103 S.Ct. 1933, or in order to exclude “excessive, redundant, or otherwise unnecessary hours.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir.1999). 1. Reductions Based on Partial Success Defendant contend that “it is unconscionable for counsel’s fees to nearly equal the recovery actually awarded- to the client.” Def.’s Opp. Br. at 8: Defendant argues that this Circuit “recognizes that the degree of success obtained by the plaintiff is the most important factor in determining the appropriate fee award.” Id. Defendant also argues that Elting only succeeded on two claims out of a total of six claims which were litigated in this matter, and therefore should have his attorneys fees reduced accordingly. Id, at 1. Elting contends that the six claims were inextricably intertwined, and the Court should therefore not reduce the award of attorneys’ fees to Elting based on the unsuccessful claims. PL’s Mem. L. at 3-6. Elting further argues that his attorneys should recover a fully compensatory fee because he obtained “excellent results.”\" PL’s Reply Br. at 1 (citing G.B. ex rel. N.B., 894 F.Supp.2d at 425). Elting contends that the proper inquiry is “not whether plaintiff has succeeded on evéry motion or every claim, but whether such action by the attorney was reasonably undertaken.” Id. (citing Gierlinger v. Gleason, 160 F.3d 858, 880 (2d Cir.1998); Marisol A. ex rel. Forbes v. Giuliani, 111 F Supp.2d 381, 393 (S.D.N.Y.2000)). The Second Circuit has “clearly adopted the view ... that a district judge’s authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiffs ‘partial or limited success’ is not restricted either to cases of multiple, discrete theories or to cases in which the plaintiff won only a nominal or technical victory.” Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d Cir. 2005), Where a plaintiffs lawsuit was based on a common nucleus of" }, { "docid": "8253463", "title": "", "text": "an attorney’s overhead” (internal quotation marks and alterations omitted)). 2. Hours Expended The fee applicant “bears the burden of ... documenting the appropriate hours expended.” Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Thus, fee award applications must be documented with “contemporaneous time records ... [that] specify, for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983); see also id. at 1147 (“[CJontemporaneous time records are a prerequisite for attorney’s fees in this Circuit.”). In determining the amount of hours reasonably expended, the court must “examine the hours expended by counsel and the value of the work product of the particular expenditures to the client’s case.” Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998) (quoting DiFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1985)). If the documentation is inadequate, the court may reduce the award accordingly. See Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933. In addition, the court should exclude “excessive, redundant, or otherwise unnecessary” hours from the lodestar calculation. Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir.2009) (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933); accord Luciano, 109 F.3d at 116 (“If the district court concludes that any expenditure of time was unreasonable, it should exclude these hours from the lodestar calculation.”). “In making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.” Gierlinger, 160 F.3d at 876 (quoting DiFilippo, 759 F.2d at 236). “Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. District courts are authorized “to make across-the-board percentage cuts in hours as a practical means of trimming fat from a fee application.” Green v. City of New York, 403 Fed.Appx. 626, 630 (2d Cir.2010) (quoting In re Agent Orange Prod. Liab." }, { "docid": "8253462", "title": "", "text": "rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 98 (2d Cir.2006) (“[Different rates can be set for different litigation tasks” (citing Cohen v. W. Haven Bd. of Police Comm’rs., 638 F.2d 496, 505 (2d Cir.1980))). However, I decline to award Hanski his requested 25% rate for ministerial tasks, and instead disallow compensation for those hours entirely. See Barfield, 537 F.3d at 139 (approving district court’s determination that time “spent on administrative tasks should not be compensated at all”); Concrete Flotation Sys., Inc. v. Tadco Const. Corp., No. 07-CV-319 (ARR)(WP), 2010 WL 2539661, at *1 (E.D.N.Y. June 17, 2010) (excluding all fees billed for “secretarial work,” as well as travel time); Kochisarli, 2008 WL 1882662, at *9 (excluding all time spent on “secretarial duties” as “noncompensable”); Jennette v. City of New York, 800 F.Supp. 1165, 1170 (S.D.N.Y.1992) (disallowing compensation for ministerial time because “this time does not properly belong in the category of legal work for which a premium rate may be sought ... and ... is normally subsumed within an attorney’s overhead” (internal quotation marks and alterations omitted)). 2. Hours Expended The fee applicant “bears the burden of ... documenting the appropriate hours expended.” Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Thus, fee award applications must be documented with “contemporaneous time records ... [that] specify, for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983); see also id. at 1147 (“[CJontemporaneous time records are a prerequisite for attorney’s fees in this Circuit.”). In determining the amount of hours reasonably expended, the court must “examine the hours expended by counsel and the value of the work product of the particular expenditures to the client’s case.” Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998) (quoting DiFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1985)). If the documentation is inadequate, the court may reduce the award accordingly. See Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933. In addition, the court should exclude “excessive, redundant, or" }, { "docid": "2229882", "title": "", "text": "affirmation and memorandum of law. PL’s Reply Mem. L., Aug. 20, 2015, ECF No. 171; Watkins Reply Affirm., Aug. 20, 2015, ECF No. 172. DISCUSSION Elting seeks a total of $171,225 in reasonable attorneys’ fees and $1,756.78 in costs. As provided in 42 U.S.C. § 1988, “[i]n any action or proceeding to enforce a provision of section[ ] ... 1983 ... of this title ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs[.]” Defendants do not dispute that Elting is a “prevailing patty” in this litigation. However, Defendants challenge the fee application on the grounds that the hourly rates sought and the number of hours expended by counsel are not reasonable. “The district court retains discretion to determine ... what constitutes a reasonable fee.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir.2011) (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir.1998)) (internal quotation marks omitted). A reasonable fee is calculated by taking “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). “Both [the Second Circuit] and the Supreme Court have held that the lodestar— the product of a reasonable hourly rate and the reasonable number of hours required by the case — creates a ‘presumptively reasonable fee.’ ” Millea, 658 F.3d at 166 (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir.2008); Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010)). “A detailed explanation of the lodestar calculation is unnecessary, but compliance with the Supreme Court’s directive that fee award calculations be ‘objective and reviewable,’ implies the district court should at least provide the number of hours and hourly rate it used to produce the lodestar figure.” Id. at 166-67 (citing Perdue, 130 S.Ct. at 1674). “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.”" }, { "docid": "9274825", "title": "", "text": "burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.\" Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). While a district court retains discretion to determine what constitutes a reasonable fee, \"this discretion is not unfettered.\" Millea v. Metro-North R.R. Co. , 658 F.3d 154, 166 (2d Cir. 2011). \"[W]hen a prevailing party is entitled to attorneys' fees, the district court must abide by the procedural requirements for calculating those fees articulated by [the Second Circuit] and the Supreme Court.\" Id. \"Both [the Second Circuit] and the Supreme Court have held that the lodestar - the product of a reasonable hourly rate and the reasonable number of hours required by the case - creates a 'presumptively reasonable fee.' \" Id. (citing Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) and Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany , 522 F.3d 182, 189-90 (2d Cir. 2008) ). This approach is intended to \"produce[ ] an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.\" Perdue , 559 U.S. at 551, 130 S.Ct. 1662 (citations omitted; emphasis in original); see also Bergerson v. N.Y. State Office of Mental Health , 652 F.3d 277, 289-90 (2d Cir. 2011) (\"A reasonable hourly rate is what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively\") (internal quotation marks and citations omitted). A reasonable rate is generally the \"prevailing market rate[ ] for counsel of similar experience and skill to the fee applicant's counsel.\" Farbotko v. Clinton County , 433 F.3d 204, 209 (2d Cir. 2005). In deciding what constitutes a reasonable rate, a court may consider \"rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district.\" Id. \"The relevant community to which" }, { "docid": "4242593", "title": "", "text": "evidentiary submissions and arguments of the parties. Gierlinger, 160 F.3d at 876 (quoting DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d Cir.1985)). The Second Circuit has farther directed that if the district court determines that certain hours are not deserving of compensation, it must state the reasons for excluding those hours “as specifically as possible.” LeBlanc-Sternberg, 143 F.3d at 764 (internal quotations omitted); Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir.1997). “The product of reasonable hours times a reasonable rate does not end the inquiry.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. There are other considerations that may lead a court to adjust the fee upward or downward. Id. The lodestar figure may be adjusted on the basis of the “results obtained.” Id. “Indeed, ‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’ ” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). “This factor is particularly crucial where a plaintiff is deemed ‘prevailing’ even though he succeeded on only some of his claims for relief.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. A plaintiff who prevails on some but not all of his claims is not entitled to a fee award for unsuccessful claims that were based on different facts and different legal theories. Id. However, a plaintiffs lack of success on some of his claims does not require the court to reduce the lodestar amount where the successful and unsuccessful claims were interrelated and required essentially the same proof. Murphy v. Lynn, 118 F.3d 938, 951 (2d Cir.1997), cert. denied, 522 U.S. 1115, 118 S.Ct. 1051, 140 L.Ed.2d 114 (1998); Lunday, 42 F.3d at 134; Grant v. Bethlehem Steel Corp., 973 F.2d 96, 101 (2d Cir.1992), cert. denied, 506 U.S. 1053, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993); DeLeon v. Little, No. 3:94CV902RNC, 2000 WL 435494, at *4 (D.Conn. Mar.2, 2000). The following factors also may be considered: (1) the time and labor required; (2) the novelty and difficulty of" }, { "docid": "21094354", "title": "", "text": "Hours Reasonably Expended In determining whether the hours expended by the parties was reasonable, the Court must “examine the hours expended by counsel and the value of the work product of the particular expenditures to the client’s case.... In making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.” Gierlinger, 160 F.3d at 876 (quoting DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d Cir.1985)). The court may exclude hours that it determines were “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Some reduction in plaintiffs’ fee award is warranted. The Court -will address each area of contention below and explain its reasoning with regard to any reduction. However, rather than reducing a certain number of unreasonably billed hours, the Court will make an across-the-board percentage cut in plaintiffs’ fee award as is necessary and appropriate. See, e.g., In re Agent Orange, 818 F.2d at 237 (stating that “in cases in which substantial numbers of voluminous fee petitions are filed, the district court has the authority to make across-the-board percentage cuts in hours ‘as a practical means of trimming fat from a fee application.’” (quoting New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983)); see also United States Football League, 887 F.2d at 415 (approving a percentage reduction of total fee award to account for vagueness in documentation of certain time entries). 1. Time Spent on the Case Against the State Defendants argue that they should not be required to pay fees for hours spent by plaintiffs litigating their claims against the State. Plaintiffs agree to withdraw 113 hours that CRI spent on negotiating and finalizing the State Settlement Agreement but continue to request compensation from the City defendants for other hours spent litigating against the State. The allocation of fee liability between defendants is not mandated but rather is within the discretion of the district court. See" }, { "docid": "8414592", "title": "", "text": "PaineWebber Ltd. P’ships Litig., 147 F.3d 132, 138 (2d Cir.1998)). . In re Warner Chilcott Ltd. Sec. Litig., No. 06 Civ. 11515, 2009 WL 2025160, at *3 (S.D.N.Y. July 10, 2009) (quoting Maley v. Del Global Techs. Corp., 186 F.Supp.2d 358, 367 (S.D.N.Y.2002)). . Id. (quoting Maley, 186 F.Supp.2d at 367). . Parker v. Time Warner Entm't Co., L.P., 631 F.Supp.2d 242, 262 (E.D.N.Y.2009) (citations omitted). . 15 U.S.C. § 78u-4(a)(4). . Parker, 631 F.Supp.2d at 263-64 (quoting In re Holocaust Victim Assets Litig., 424 F.3d 150, 157 (2d Cir.2005)). . Id. . Id. (quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980)). . See Wal-Mart Stores, 396 F.3d at 121 (citing Goldberger, 209 F.3d at 50). Although the Second Circuit has recently abandoned use of the lodestar, it did so in the context of fee shifting to a prevailing plaintiff under the Voting Rights Act of 1964. See Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany and Albany County Bd. of Elections, 522 F.3d 182, 190 (2d Cir.2008). Since that opinion, the Circuit has reaffirmed the principle that the Goldberger factors should still be considered in determining a reasonable fee in class actions. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 134 (2d Cir.2008). But see Cavalieri v. General Elec. Co., No. 06 Civ. 315, 2009 WL 2426001, at *3 (N.D.N.Y. Aug. 6, 2009) (while ruling on a class action fee motion, noting that the lodestar method had been replaced by the \"presumptively reasonable fee” as set out in Arbor Hill). Nevertheless, this Court has always adjusted lodestars when it has determined them to be unreasonable or unsupportable. Arbor Hill’s ruling that the \"presumptively reasonable fee” should apply, see 522 F.3d at 183, is therefore not new to this Court’s practice when it determines the appropriate fees to award. . Wal-Mart Stores, 396 F.3d at 121 (citing Goldberger, 209 F.3d at 47). . Id. (citations and quotation marks omitted). . Goldberger, 209 F.3d at 50. . Wal-Mart Stores, 396 F.3d at 121 (citing Goldberger, 209 F.3d" } ]

[ { "docid": "8071950", "title": "", "text": "additional violations alleged. Bayonne argues in opposition that the terms of the 1978 permit may not be construed as terminating the interim standards on July 1, 1983. Alternatively, Bayonne argues that the terms of the permit are ambigious. The question before me is whether, as a matter of law, the 1978 permit imposed upon Bayonne the original secondary-treatment standards or the interim standards, during the period beginning on July 1, 1983 and ending when the permit ended in March 1986. I find as a matter of law that Bayonne’s permit extended the city’s deadline for abiding by the secondary-treatment standards with July 1, 1983, and no later. I reach this conclusion for the following reasons. First, the Clean Water Act amendments of 1977 make it clear that EPA had no authority to extend secondary-treatment standard deadlines beyond July 1, 1983. The applicable version of Section 1311(i) of the Act, added in 1977 and later altered by further amendment, states in part that when long-term construction or delayed federal finding has prevented the implementation of facilities sufficient to meet the 1977 deadline for improved effluent standards, then the EPA may issue a permit “which shall contain a schedule of compliance for the publicly owned treatment works based on the earliest date by which such financial assistance will be available from the United States and construction can be completed, but in no event later than July 1, 1983.” Cf. Bethlehem Steel Corp. v. Train, 544 F.2d 657, 660-63 (3d Cir.1976) (in case decided prior to 1977 Amendment of the Act, court held that EPA had no authority to extend statutory 1977 deadline). This statutory limit on extensions is wholly unambiguous. Nor can Bayonne plead ignorance of the statute as an excuse for violating the original secondary-treatment standards after July 1, 1983. See, e.g., United States v. International Minerals and Chemical Corp., 402 U.S. 558, 563, 91 S.Ct. 1697, 1701, 29 L.Ed.2d 178 (1971). Second, I find that there exists no genuine issue of material fact which prevents a finding that, as a matter of law, Bayonne’s permit imposed interim effluent standards until" } ]

[ { "docid": "4026049", "title": "", "text": "questionable whether the EPA can bar a citizen’s suit by any means other than its own diligent prosecution. As we stated in Bethlehem Steel Corp. v. Train, “[w]hile a citizen must give the EPA advance notice of his intention to sue, there is no authorization to block a citizen’s suit under section 505 even though the agency believes that the suit should not go forward.” 544 F.2d 657, 660 (3d Cir.1976) (footnote omitted), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977); see also Student Public Interest Research Group v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131 (3d Cir.1985) (EPA enforcement action if not an action in court or an equivalent thereto does not bar citizen suit under Clean Water Act to enforce NPDES permit limitations); Student Public Interest Research Group v. Monsanto, 600 F.Supp. 1479, 1482 (D.N.J.1985) (same); Baughman, 592 F.2d at 218-19 (action by state against polluter does not bar citizen suit); Friends of the Earth, 535 F.2d at 178-79 (negotiations between the EPA and the polluter designed to reach a consent decree are “no substitute for enforcement” and “cannot be used to nullify the citizen’s statutorily-guaranteed right of enforcement”); Kitlutsisti v. Arco Alaska, Inc., 592 F.Supp. 832, 839 (D.Alaska 1984) (“EPA’s promise not to prosecute ... does not insulate [alleged polluter] from citizen suits”), appeal dismissed and vacated as moot, 782 F.2d 800 (9th Cir.1986). We need not decide that issue here. Nor do we decide whether, under the Act, the EPA’s agreement to a limited stay of permit limitations during the period that the polluter was pursuing state agency appeals could temporarily bar citizen enforcement. Instead, we limit ourselves to the question whether the stay, under the circumstances presented here, could indefinitely bar Prof-fitt’s citizen suit, which was the effect of the district court’s decision. Rohm & Haas’ argument in effect is that it was subject to no effluent discharge limitations on TSS and pH because the 1974 permit was superseded by the amendments incorporated in the 1976 permit which stayed the limitations contained therein. As a preliminary matter, there is considerable" }, { "docid": "3879837", "title": "", "text": "v. City and County of Honolulu, Civ. No. 90-00219 ACK, December 31, 1990 Order). 36. Even if the city eventually does obtain an effective 301(h) waiver permit for the Honouliuli plant, this permit will not retroactively “cure” previous violations of the Act. See August 27, 1992 Order at 9-10 (citing Menzel v. County Utilities Corp., 712 F.2d 91 (4th Cir.1983); Connecticut Fund for the Environment, Inc. v. UpJohn Co., 660 F.Supp. 1397, 1413 (D.Conn.1987); SPIRG v. Monsanto Co., 600 F.Supp. 1479 (D.N.J. 1985); United States v. Metropolitan District Commission, 16 Envtl.L.Rep. (E.L.I.) 20,621, 1985 WL 9071 (D.Mass.1985)). 37. Neither EPA nor its state agent, DOH, has authority to extend secondary treatment deadlines or grant permits to discharge at less than secondary levels beyond July 1, 1988. Accordingly, the provisions in the 1985 consent order between the city and DOH purportedly lowering the effluent limitations for the plant are of no effect after the statutory municipal compliance deadline of July 1, 1988. 38. As the court held in its May 8, 1992 order, the city has been in continuous daily violation of the secondary treatment effluent limitations in its NPDES permit since July 1, 1988. 39. Plaintiffs have calculated that the plant has accumulated a total of 11,382 separate violations of the secondary treatment effluent limitations in its permit from July 1, 1988 to December 31, 1992. Plaintiffs calculation treats an exceedance of each effluent limitation as a separate violation and assumes that the violation of a 30 day average counts as a violation for every day of that month (i.e., 30 violations in a month with 30 days), and the violation of a seven day average counts as 7 violations. There were a total of 1,645 days in this period. 40. The court does not find that plaintiffs methodology is the most analytically sound approach. The Ninth Circuit has not addressed the method for counting violations of the Clean Water Act, but other circuits can provide some guidance. In Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128, 1138-40 (11th Cir.1990) (“Tyson ”), the court held that each distinct" }, { "docid": "13951348", "title": "", "text": "and tech nological infeasibility. The Court acknowledged that harsh consequences could ensue under such an interpretation, but stated that this was a risk that Congress had opted to take, and that it was not for the courts to upset that Congressional decision. Union Electric appears to indicate that the Supreme Court is willing to construe environmental statutes in a manner that may impose major burdens on polluters, and if the plain language of the applicable legislation so indicates, relief from such hardships must flow from Congress. The decision in State Water Control Board v. Train, reflects an approach similar to that taken in Union Electric in the context of a factual situation closely resembling the one in this case. Section 301(b)(1) of FWPCA requires that publicly-owned sewage treatment plants must comply with certain effluent limitations by July 1, 1977. The Act states that the federal government will provide 75% of all funding required for construction of municipal treatment facilities. For a variety of reasons much of the funding was not made available to local governments. This resulted in many publicly-owned treatment plants being unable to meet the July 1,1977 deadline. The Virginia State Water Control Board brought suit for a judgment declaring that the affected sewage treatment plants did not have to meet the compliance date. The Board urged that Congress must have intended to link compliance with the deadline to the availability of the federal funds. Judge Mehrige’s opinion expressed sympathy for the predicament in which the municipalities had been placed by the federal government’s failure to meet its statutory responsibility. But he ruled that there was no warrant in the legislation for granting an extension of the compliance date. The proper branch of government to extricate the local governments from their difficulties, Judge Mehrige stated, was not the courts, but Congress. Consequently, on the basis of the legislative history and the adjudicated cases, we hold that the EPA is without authority to grant an extension, in NPDES permits, of the July 1, 1977 date. V. Bethlehem has also asserted that if FWPCA is construed to require compliance by" }, { "docid": "3879764", "title": "", "text": "have been set by the Environmental Protection Agency pursuant to 33 U.S.C. § 1314(d)(1). The EPA defines “secondary treatment” to require the removal of 85% of BOD and SS in the effluent, average concentrations of 30 mg/1 on a 30-day average for both BOD and SS, average concentrations of 45 mg/1 on a seven-day average for both BOD and SS, and a pH level between 6.0 and 9.0. 40 C.F.R. §§ 133.102(a) and (b). 23. Sewage plant engineers generally refer to secondary treatment as the use of biological treatment (i.e., digestion by microorganisms) of sewage in addition to the physical treatment processes provided by primary treatment. 24. Primary treatment, the lowest level of wastewater treatment, is generally defined as the physical treatment of effluent through screening and gravity settling in sedimentation tanks. It is defined by the Clean Water Act as at least 30% removal of BOD and SS. 33 U.S.C. § 1311(h). Advanced primary treatment normally involves the addition of chemicals to enhance settling and coagulation of sewage matter and removes a higher percentage of BOD and SS than primary treatment. 25. The Act has been amended several times to extend the secondary treatment compliance deadline for POTWs to its current and final date of July 1, 1988. No extensions can be granted beyond that date by the EPA or a state. 33 U.S.C. §' 1311(i)(l). 26. In 1977, Congress amended the Act to allow municipalities that discharge into deep marine waters to obtain NPDES permits for discharge at less than secondary treatment effluent limitations if they could establish that it would not harm the marine environment. 33 U.S.C. § 1311(h). 27. On June 15, 1979, the EPA promulgated regulations governing § 301(h) applications. 44 Fed.Reg. 34,784-34,832. In response to NRDC v. USEPA, 656 F.2d 768 (D.C.Cir.1981), the 301(h) regulations were amended on November 26, 1982, to allow municipalities to submit a reapplication following a tentative decision to propose changes in treatment level or outfall and diffuser design. 40 C.F.R. Part 125.59(d). E. The State NPDES Program 28. Pursuant to 33 U.S.C. § 1342, the Administrator of the EPA" }, { "docid": "23056331", "title": "", "text": "that led to the 1972 Amendment, and the operation of the NPDES program, with particular emphasis on its implementation in California, is set forth in EPA v. State Water Resources Control Board, 426 U. S. 200, 202-209 (1976), and need not be repeated here. Although the EPA has taken the position in this litigation that § 301 (b)(1)(B) required the city to end the Hyperion plant’s discharge of sludge into the ocean by July 1, 1977, the compliance schedule incorporated in the 1975 NPDES permit required the city to achieve total “sludge-out” by April 1978. The EPA asserts that this less stringent compliance schedule was necessitated by the practical inability of Los Angeles to meet the FWPCA’s requirements. Reply Brief for Petitioner 8, n. 5. Congress subsequently has acted to permit the operator of a publicly owned treatment works, in certain circumstances, to request the EPA Administrator to extend the time allowed for achieving the limitations of § 301 (b)(1)(B). Compliance must be attained, however, by July 1, 1983. Clean Water Act of 1977, Pub. L. 95-217, § 45, 91 Stat. 1584, 33 U. S. C. § 1311 (i) (1) (1976 ed., Supp. II). The city has applied for an extension of the July 1, 1977, secondary-treatment deadline established by §301 (b)(1)(B), but that application has not yet been acted upon by the EPA. Brief for Respondent City of Los Angeles 6, n. 5. The EPA’s public participation regulations were modified after the events central to this case took place. 44 Fed. Reg. 32854 (1979). Many features of the regulations that are at issue here, however, have been retained. See 40 CFR §§ 124.41-45, 124.61-64, 124.71-101, 124.111-127, and 124.131-135 (1979). All references in this opinion to the EPA’s public participation regulations, unless otherwise designated, are to the 1978 compilation. On December 1, 1975, the CRWQCB issued an order modifying the city’s compliance schedule for alternative sludge disposal. That order announced that “concept approval” had been given on October 1, 1975, and fixed definite dates for achieving the elimination of sludge discharge into the ocean. Total \"sludge-out” was to be achieved" }, { "docid": "18418183", "title": "", "text": "445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329 (1980); 40 C.F.R. part 124 (1983); id. §§ 124.10(a), 124.10(c)(i). Given that EPA did not follow any administrative procedures in holding that § 558(c) extended the permit, it is clear that EPA did not intend to extend the permit by formal agency action. Nor would EPA have the authority to do so. The FWPCA would prohibit any agency action regarding the permit that did not implement the FWPCA’s 1984 BAT technology standards. EPA sim ply cannot issue a permit not in compliance with those standards. See, e.g., 40 C.F.R. §§ 122.44, 122.46(e) (1983); Monongahela Power Co. v. EPA 586 F.2d 318, 319 (4th Cir.1978); Republic Steel Corp. v. Costle, 581 F.2d 1228 (6th Cir.1978) (Republic Steel II), cert. denied, 440 U.S. 909, 99 S.Ct. 1219, 59 L.Ed.2d 457 (1979). 2. General Permits Cannot be Extended by Operation of Law The EPA has not argued that it extended the Norton Sound general permit by agency action. Instead, it has asserted that § 558(c) automatically extends the permit without agency action by operation of law. Section 558(c), however, does not allow for the extension of a NPDES general permit. First, § 558(c) only applies to “lieense[s] required by law.” When a license is required, then, as noted above, the agency has a mandatory duty to act on the license application. The purpose of the “extension” language in § 558(c) is to protect the license applicant when the agency is slow in performing such a mandatory duty. When, however, the agency has no duty to act on a license, as is the case with a general permit, see 40 C.F.R. 122.28(a) (1983), the applicant has no legally protected expectation that the agency will issue the permit. Because the applicant has no protectable interest, there is therefore no need to protect him or her from agency inaction. In fact, EPA may delay indefinitely in issuing a new general permit. To allow § 558(c) to extend a general permit would thus result in giving the agency the ability to avoid indefinitely the permit procedures required by" }, { "docid": "8071945", "title": "", "text": "are established. See, e.g., Sierra Club v. Union Oil Co., 813 F.2d 1480, 1491-93 (9th Cir.1987); Student Public Interest Research Group v. Fritzsche, Dodge & Olcott, 579 F.Supp. 1528, 1538 (D.N.J.1984), aff'd on other grounds, 759 F.2d 1131 (3d Cir.1985); Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F.Supp. 440, 451-52 (D.Md.1985); Student Public Interest Research Group v. Monsanto Co., 600 F.Supp. 1479, 1485 (D.N.J.1985); United States v. Velsicol Chemical Corp., 438 F.Supp. 945, 948 (W.D.Tenn.1976). In general, to exceed a permit constitutes a violation of the Act. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. at 205, 96 S.Ct. at 2025; Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1374-77 (D.C.Cir.1977); Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F.Supp. 1542, 1545 (E.D.Va.1986), aff'd, 791 F.2d 304 (4th Cir.1986), cert. granted, — U.S. -, 107 S.Ct. 872, 93 L.Ed.2d 827 (1987). Defendant Bayonne owns and operates a “Publicly Owned Sewage Treatment Works,” in “POTW,” as that term is defined by EPA regulations. See 40 C.F.R. § 122.2. The Bayonne POTW collects and treats wastewater and sewage from residential, commercial, and industrial sources located in Bayonne. The Bayonne POTW discharges it effluent into the Kill Van Kull. Bayonne received its first NPDES permit in 1978. The permit was to run from December 31, 1978 to December 31, 1983. That permit limited, among other things, the acceptable level of biochemical oxygen demand (“BOD 5”) exerted by Bayonne’s effluent, and the acceptable concentration of total suspended solids (“TSS”) in Bayonne’s effluent. A BOD 5 measurement indicates the quantity of oxygen an effluent drains from the water during 5 days of decomposition. A TSS measurement, although described in more genteel terms by the parties, apparently indicates the quantity of solid sewage present in the water. The effluent limitations set out in Section B.I.A of Bayonne’s permit were premised in part on the use of “secondary treatment” pollution-control technology at the Bayonne POTW. Sewage and wastewater receive “primary treatment” when physical processes are used to screen out solids; they receive “secondary treatment” when, in addition to" }, { "docid": "18418182", "title": "", "text": "U.S.C. § 558(c) The final issue is whether the NPDES permit for ARCO and Exxon was validly extended after June 30, 1984. Defendants argue that § 9(b) of the Administrative Procedures Act, 5 U.S.C. § 558(c), operates to extend the expired general permit until such time a new general permit is issued. In pertinent part, that section reads: When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency. For the reasons stated below, this section does not operate to extend the Norton Sound general permit. 1. Permit Not Extended by Agency Action EPA’s letter to Exxon and ARCO was not an agency action extending the NPDES general permit. For EPA to take any action extending a NPDES permit, EPA must at a minimum provide for public notice and an opportunity for a public hearing. See Costle v. Pacific Legal Foundation, 445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329 (1980); 40 C.F.R. part 124 (1983); id. §§ 124.10(a), 124.10(c)(i). Given that EPA did not follow any administrative procedures in holding that § 558(c) extended the permit, it is clear that EPA did not intend to extend the permit by formal agency action. Nor would EPA have the authority to do so. The FWPCA would prohibit any agency action regarding the permit that did not implement the FWPCA’s 1984 BAT technology standards. EPA sim ply cannot issue a permit not in compliance with those standards. See, e.g., 40 C.F.R. §§ 122.44, 122.46(e) (1983); Monongahela Power Co. v. EPA 586 F.2d 318, 319 (4th Cir.1978); Republic Steel Corp. v. Costle, 581 F.2d 1228 (6th Cir.1978) (Republic Steel II), cert. denied, 440 U.S. 909, 99 S.Ct. 1219, 59 L.Ed.2d 457 (1979). 2. General Permits Cannot be Extended by Operation of Law The EPA has not argued that it extended the Norton Sound general permit by agency action. Instead, it has asserted that § 558(c) automatically extends the permit" }, { "docid": "23228917", "title": "", "text": "was free of error. Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). If it did, judgments would lack finality, the very rationale of the rule of res judicata. The district court judgment is REVERSED. . FWPCA’s stated purpose is “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve that objective, Congress declared, “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” Id FWPCA envisioned a two phase program: (1) achieve best practicable technology (BPT) by July 1, 1977; and (2) achieve best available technology (BAT) by July 1, 1983. The Clean Water Act of 1977, Pub.L. 95-217, changed the BAT requirement to a more flexible “best conventional technology” standard and extended the deadline to July 1, 1984. The Clean Water Act also amended FWPCA to allow the EPA to grant BPT extensions up to April 1, 1979, for dischargers unable to meet the July 1, 1977, deadline despite good faith efforts. 33 U.S.C. § 1319(a)(5)(B). Rayonier indicated to the district court it could not achieve compliance before June 1979, thus could not qualify for this deadline extension. Section 402 of FWPCA established NPDES permits as the primary means to enforce effluent limitations. All discharges must be authorized by a permit issued by the EPA or the authorized state agency. A permit transforms “generally applicable effluent limitations and other standards . . . into the obligations (including a time table for compliance) of the individual discharger.” EPA v. Calif, ex rel. State Water Res. Bd, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976). . The permit contained discharge limitations for suspended solids, pH and biochemical oxygen demand derived from § 13 of the Rivers and Harbors Act of 1899. 33 U.S.C. § 407. . These limitations were promulgated in “interim final form.” Final limitations were not issued until January 6, 1977. . Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.Cir.1978). . The D.C. Circuit upheld all BPT effluent limitations except" }, { "docid": "3879765", "title": "", "text": "of BOD and SS than primary treatment. 25. The Act has been amended several times to extend the secondary treatment compliance deadline for POTWs to its current and final date of July 1, 1988. No extensions can be granted beyond that date by the EPA or a state. 33 U.S.C. §' 1311(i)(l). 26. In 1977, Congress amended the Act to allow municipalities that discharge into deep marine waters to obtain NPDES permits for discharge at less than secondary treatment effluent limitations if they could establish that it would not harm the marine environment. 33 U.S.C. § 1311(h). 27. On June 15, 1979, the EPA promulgated regulations governing § 301(h) applications. 44 Fed.Reg. 34,784-34,832. In response to NRDC v. USEPA, 656 F.2d 768 (D.C.Cir.1981), the 301(h) regulations were amended on November 26, 1982, to allow municipalities to submit a reapplication following a tentative decision to propose changes in treatment level or outfall and diffuser design. 40 C.F.R. Part 125.59(d). E. The State NPDES Program 28. Pursuant to 33 U.S.C. § 1342, the Administrator of the EPA has delegated to the State of Hawaii the power to issue certain National Pollution Discharge Elimination System (“NPDES”) permits to dischargers in Hawaii. DOH is the state government department that administers the NPDES program in Hawaii. 29. The state program for issuance of NPDES permits must comply in all respects with, and must prescribe no less stringent effluent limitations than, those set forth in the Act itself. 33 U.S.C. § 1342(b). 30. In issuing an NPDES permit, both DOH and EPA are required to prescribe effluent limitation conditions that meet the discharge requirements set forth in the Act. 33 U.S.C. § 1342(a) and (b). 31. All permits issued by the state must also comply with Section 308 of the Act, 33 U.S.C. § 1318, which requires NPDES permittees to establish and maintain records; install, use and maintain monitoring equipment; sample effluent; and report on a regular basis to DOH and EPA regarding their discharge of pollutants using discharge monitoring reports (“DMRs”). 33 U.S.C. § 1342(b)(2)(A). 32. The city has filed DMRs with DOH on a" }, { "docid": "3879836", "title": "", "text": "effluent limitations based on secondary treatment by July 1, 1977. 33 U.S.C. § 1311(i)(l). 33. Congress later extended the initial deadline for compliance with secondary treatment to July 1, 1988. Under the Act, if a POTW needed an permit extension because of ongoing construction, it could apply for one under Section 301(i), but this extension could last no later than July 1, 1988. Congress has not enacted any further extensions of this statutory deadline. .34. The Act now mandates that all POTWs meet “secondary treatment” effluent limitations by July 1, 1988. 33 U.S.C. § 1311(i)(l). 35. After July 1, 1988, all treatment plants which have not yet been officially granted a section 301(h) waiver permit must be in compliance at the secondary treatment level after the July 1, 1988 deadline has passed. The pendency of a section 301(h) waiver and other permit modification applications does not excuse noncompliance with the Act in the interim. See July 3, 1991 Order at 22 (citing United States v. Metropolitan District Commission, 23 E.P.C. 1350, 1357 (D.Mass.1985); Sierra Club v. City and County of Honolulu, Civ. No. 90-00219 ACK, December 31, 1990 Order). 36. Even if the city eventually does obtain an effective 301(h) waiver permit for the Honouliuli plant, this permit will not retroactively “cure” previous violations of the Act. See August 27, 1992 Order at 9-10 (citing Menzel v. County Utilities Corp., 712 F.2d 91 (4th Cir.1983); Connecticut Fund for the Environment, Inc. v. UpJohn Co., 660 F.Supp. 1397, 1413 (D.Conn.1987); SPIRG v. Monsanto Co., 600 F.Supp. 1479 (D.N.J. 1985); United States v. Metropolitan District Commission, 16 Envtl.L.Rep. (E.L.I.) 20,621, 1985 WL 9071 (D.Mass.1985)). 37. Neither EPA nor its state agent, DOH, has authority to extend secondary treatment deadlines or grant permits to discharge at less than secondary levels beyond July 1, 1988. Accordingly, the provisions in the 1985 consent order between the city and DOH purportedly lowering the effluent limitations for the plant are of no effect after the statutory municipal compliance deadline of July 1, 1988. 38. As the court held in its May 8, 1992 order, the city has" }, { "docid": "8071944", "title": "", "text": "2022, 2024-25, 48 L.Ed.2d 578 (1976). Effluent limitations are imposed upon individual dischargers through the issuance of NPDES permits by the EPA or a designated state agency. No discharges are allowed without a permit; with a permit, a discharger may discharge only up to the levels of effluent limitation set out in the permit, and must engage in self-monitoring practices and file discharge monitoring reports (“DMR’s”) in order to aid the EPA and state agencies in enforcing the permit limitations. See 33 U.S.C. §§ 1311(a), 1311(b), 1318(a), 1342. Enforcement of NPDES permit limitations may be had in part by the prosecution of federal civil actions for monetary penalties and injunctive relief. See 33 U.S. C. § 1319(a)(3), 1319(b), and 1319(d); see also EPA v. California ex rel. State Water Resources Control Board, 426 U.S. at 205, 96 S.Ct. at 2025. In an enforcement action, a defendant’s DMR’s constitute admissions regarding the levels of effluent that the defendant has discharged. If the DMR’s show that the defendant has exceeded its NPDES permit limitations, then permit violations are established. See, e.g., Sierra Club v. Union Oil Co., 813 F.2d 1480, 1491-93 (9th Cir.1987); Student Public Interest Research Group v. Fritzsche, Dodge & Olcott, 579 F.Supp. 1528, 1538 (D.N.J.1984), aff'd on other grounds, 759 F.2d 1131 (3d Cir.1985); Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F.Supp. 440, 451-52 (D.Md.1985); Student Public Interest Research Group v. Monsanto Co., 600 F.Supp. 1479, 1485 (D.N.J.1985); United States v. Velsicol Chemical Corp., 438 F.Supp. 945, 948 (W.D.Tenn.1976). In general, to exceed a permit constitutes a violation of the Act. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. at 205, 96 S.Ct. at 2025; Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1374-77 (D.C.Cir.1977); Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F.Supp. 1542, 1545 (E.D.Va.1986), aff'd, 791 F.2d 304 (4th Cir.1986), cert. granted, — U.S. -, 107 S.Ct. 872, 93 L.Ed.2d 827 (1987). Defendant Bayonne owns and operates a “Publicly Owned Sewage Treatment Works,” in “POTW,” as that term is defined by EPA regulations. See 40 C.F.R. §" }, { "docid": "22923403", "title": "", "text": "time, not the public’s . . . Train v. Natural Resources Defense Council, 421 U.S. 60, 92, 95 S.Ct. 1470, 1488, 43 L.Ed.2d 731 (1975). There is no reason not to apply that principle here. Therefore U. S. Steel cannot use the delay between October 1974 and the present as an excuse for not installing a recycling system. This conclusion is further supported by Congress’ intent that BPT be determined on a nationwide basis, with substantially the same technology-based effluent limitations applicable to all similar point sources. Temporal feasibility of BPT installation is not included in the § 304(b) factors and should not be a ground for a variance. Consideration of that factor would emasculate the mandatory nature of the July 1, 1977 compliance deadline. See Bethlehem Steel Corp. v. Train, 544 F.2d . 657 (3d Cir. 1976), cert. denied, - U.S. -, 97 S.Ct. 1666, 51 L.Ed.2d 369 (1977). Also, as the Third Circuit noted in Bethlehem Steel, Congress considered and rejected a provision of the House bill, which would have enabled EPA to grant a hardship exception to the July 1, 1977 compliance deadline when it “determines that it is not possible either physically or legally to complete the necessary construction within the statutory time limit.” Although Congress’ failure to enact this extension provision is not conclusive of its intent, it does offer some further confirmation of our conclusion that U. S. Steel was required to litígate on its own time. Id., 544 F.2d at 662. (b) Interim Limitations Sustaining EPA’s conclusions that recycling is BPT and that Gary Works is not entitled to a variance from the limitations based on BPT, does not, however, end our inquiry. U. S. Steel also challenges EPA’s § 304(b)(1)(A) calculation of “the degree of effluent reduction attainable through the application of [BPT]” at Gary Works, reflected in the interim TSS limitations. EPA calculated those limits by estimating the flow of water in the recycling system, the TSS concentration in the recycling flow, and the volume of water discharged from the system, or blowdown. EPA then multiplied the blowdown volume, expressed in" }, { "docid": "23228901", "title": "", "text": "in August 1974 and the EPA did not exercise its veto authority. See 33 U.S.C. § 1342(d)(2). Disputes arose as to the adequacy of Rayonier’s implementation plans. In November 1975, the EPA advised DOE that, if it did not take action, Rayonier would be a “candidate” for federal enforcement. Doe issued a compliance order in December 1975 which Rayonier appealed to the state Pollution Control Hearings Board. In February 1976, more than two years after its statutory deadline, the EPA promulgated effluent limitations for pulp mills. Rayonier and other pulp firms immediately challenged those standards in federal court. In its July 1976 hearing before the state pollution control hearings board, Rayonier contended footnote f extended its compliance schedule pending final judicial approval of the EPA’s proposed effluent guidelines. The board disagreed, denied a stay pending judicial review, and ordered Rayonier to meet its permit compliance schedule. This order was stayed pending Rayonier’s appeal to state superior court. In March 1977, the EPA issued a notice of violation to Rayonier and DOE pursuant to 33 U.S.C. § 1319(a)(1). Three weeks later the state court reversed the hearings board, finding footnote f excused compliance pending judicial approval of final effluent limitations. DOE appealed to the state supreme court, notifying the EPA that it was effectively prevented from further enforcement. In April 1977, the EPA filed its own enforcement action in federal court under 33 U.S.C. § 1319(b), seeking injunctive relief and civil penalties. The July 1, 1977, statutory deadline for attaining best practicable control technology passed with the parties at an impasse. In October 1977, the district court granted the EPA’s motion for summary judgment on the injunctive phase of the case and ordered immediate compliance with the permit. The court found footnote f to be an unambiguous declaration pertaining only to substitution of standards and not to modification of the compliance schedule. Pending appeal of the district court’s injunction order, several significant events have transpired. First, the D.C. Circuit upheld the BPT effluent limitations for the pulp industry with one relevant exception. Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.Cir.1978). Second," }, { "docid": "8071951", "title": "", "text": "sufficient to meet the 1977 deadline for improved effluent standards, then the EPA may issue a permit “which shall contain a schedule of compliance for the publicly owned treatment works based on the earliest date by which such financial assistance will be available from the United States and construction can be completed, but in no event later than July 1, 1983.” Cf. Bethlehem Steel Corp. v. Train, 544 F.2d 657, 660-63 (3d Cir.1976) (in case decided prior to 1977 Amendment of the Act, court held that EPA had no authority to extend statutory 1977 deadline). This statutory limit on extensions is wholly unambiguous. Nor can Bayonne plead ignorance of the statute as an excuse for violating the original secondary-treatment standards after July 1, 1983. See, e.g., United States v. International Minerals and Chemical Corp., 402 U.S. 558, 563, 91 S.Ct. 1697, 1701, 29 L.Ed.2d 178 (1971). Second, I find that there exists no genuine issue of material fact which prevents a finding that, as a matter of law, Bayonne’s permit imposed interim effluent standards until July 1, 1983 only. The following passage from Section C.II of the permit is relevant to this dispute: The permittee has indicated that the level of treatment currently being afforded the discharge is not meeting the level of treatment as provided for in Section 301(b)(1)(B) and (C) of the Act, and has requested a time extension under Section 30(i) of the Act. Upon review of all the facts presented in this matter, the EPA hereby grants such a time extension provided that the permittee shall comply with the following schedule and shall report to the Regional Administrator and the State Agency within 14 days following each date on the schedule detailing its compliance or non-compliance ... 2. If the Facilities Plan, as approved by the Regional Administrator and the NJSDEP, requires the abandonment of the permittee’s treatment facilities and the diversion of sewage flows to a regional treatment facility, the permittee shall comply with the following. a. Sign a Service Agreement with the HCUA within three (3) months of the approval of the Facilities Plan." }, { "docid": "8071947", "title": "", "text": "physical processes, biological processes are used to break down some of the remaining impurities. Separate provisions of the Act call for all POTW’s such as Bayonne’s to meet effluent limitations based on the use of secondary-treatment technology no later than July 1, 1977, 33 U.S.C. § 1311(b), and establish federal-finding programs for the implementation of secondary-treatment technology at POTW’s by the 1977 deadline, 33 U.S.C. §§ 1281 et seq. Bayonne has never had secondary treatment technology in place at its POTW. Rather, it relies solely on less-effective primary-treatment efforts to clean its effluent. Nor did Bayonne meet the 1977 deadline for effluent limitations set out in the Act. This failure is not a basis for liability in and of itself, however, because Bayonne was to some degree released from the 1977 deadline. In 1977, cognizant of delays in secondary-treatment implementation caused by failures of finding and public leadership at the local, state, and federal levels, Congress amended the Act to allow for extensions of the 1977 effluent-limitation deadline to July 1, 1983 for certain deserving PTW’s identified by the EPA. 33 U.S.C. § 1311(i). In accordance with this provision, the EPA included a special section in Bayonne’s 1978 permit, for some period of time during the term of the permit, from the secondary-treatment effluent standards which would otherwise become enforceable after the 1977 deadline. This section of the permit imposed instead “interim” effluent limitations that were not premised on the use of secondary-treatment technology. Whether that section, designated C.II in the permit, granted Bayonne its interim limitations for a definite, short period of time or for a longer, potentially open-ended period of time is the issue chiefly in dispute on this motion. In any event, the 1978 permit continued in effect until March 1986, when the N.J. DEP, acting as a designated permit-issuing authority in accordance with the Act, belatedly issued Bayonne a new permit running until 1991. In support of its motion against Bayonne, the United States has submitted a wealth of factual material, including copies of Bayonne’s duly-filed DMR’s. This material, including the DMR’s, establishes that Bayonne violated" }, { "docid": "4026048", "title": "", "text": "both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternative enforcement mechanism.” Baughman v. Bradford Coal Co., 592 F.2d 215, 218 (3d Cir.) (citing S.Rep. No. 1196, 91st Cong. 2d Sess. 2, 35-36 (1970)), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); see also Friends of the Earth v. Carey, 535 F.2d 165,172 (2d Cir.1976) (“citizen suits provision reflected a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance that the Act would be implemented and enforced” (citation omitted)). The district court concluded that notwithstanding the absence of any statutory bar to Proffitt’s suit, the “stay of enforcement” that was incorporated into the 1976 NPDES permit “precluded EPA’s] own enforcement of the limitations except in accordance with the provisions of the stipulation,” Proffitt, 668 F.Supp. at 440, and “[a] private citizen has no greater right to enforce the standard and limitation” than the EPA has, id. at 441. It is questionable whether the EPA can bar a citizen’s suit by any means other than its own diligent prosecution. As we stated in Bethlehem Steel Corp. v. Train, “[w]hile a citizen must give the EPA advance notice of his intention to sue, there is no authorization to block a citizen’s suit under section 505 even though the agency believes that the suit should not go forward.” 544 F.2d 657, 660 (3d Cir.1976) (footnote omitted), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977); see also Student Public Interest Research Group v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131 (3d Cir.1985) (EPA enforcement action if not an action in court or an equivalent thereto does not bar citizen suit under Clean Water Act to enforce NPDES permit limitations); Student Public Interest Research Group v. Monsanto, 600 F.Supp. 1479, 1482 (D.N.J.1985) (same); Baughman, 592 F.2d at 218-19 (action by state against polluter does not bar citizen suit); Friends of the Earth, 535 F.2d at 178-79 (negotiations between the EPA and the polluter designed to" }, { "docid": "13951338", "title": "", "text": "Act . . . .” Section 304(b)(1)(A), in turn, mandates the EPA to promulgate guidelines for emissions by certain indus tries, including the iron and steel industry, by October 18, 1973. The third provision, section 402, establishes the National Pollutant Discharge Elimination System (NPDES) permits as the primary means through which effluent limitations are to be enforced. All discharges of pollutants must be authorized by a permit issued by either the EPA or the state environmental authorities. Subsection (a)(1) of section 402 states that the permits are to be conditioned on conformity with all applicable requirements of certain other statutory provisions, including section 301. It is further provided that all permits must be issued by December 31, 1974. Thus, the legislative structure is that general standards of pollution control are to be promulgated under sections 301 and 304, and that these standards are then to be implemented in particular cases through the use of section 402 permits. The sequence of administrative action contemplated by Congress has never taken hold in the iron and steel industry. The section 304 guidelines for that industry were not established by October 18, 1973; indeed, none are in force today. As a result, permits have been issued to iron and steel manufacturers under a clause of section 402(a)(1) that empowers the EPA to grant permits, on an interim basis, before formal guidelines are promulgated. II. On December 31, 1974, the EPA issued a permit to Bethlehem, pursuant to its stopgap authority, containing effluent limitations and compliance schedules, and requiring attainment of final compliance levels by July 1, 1977. For Bethlehem to meet this deadline it would have to complete extensive construction by April 1, 1977, an accomplishment which Bethlehem has insisted is physically impossible in spite of good faith compliance efforts. The earliest date by which it could meet the prescribed levels would be July 1, 1979. Bethlehem fully pursued its administrative remedies in an attempt to obtain an extension of the compliance date. Although EPA agreed that compliance by July 1, 1977 was not feasible, it ruled at all stages that it was without" }, { "docid": "3879835", "title": "", "text": "(11th Cir. 1990). 30. The fact that a violator is “without fault” in committing violations of the Clean Water Act does not absolve the violator from penalties, although it may mitigate the amount of the penalties assessed. See United States v. Ohio Edison, 725 F.Supp. 928, 934 (N.D.Ohio 1989) (“Even assuming that defendant is without fault in this matter, the statute does not require fault to support a penalty. Issues of fault and intent are relevant only on the question of the amount of the penalty imposed.”) (emphasis added); United States v. Boccanfuso, 695 F.Supp. 693, 700 (D.Conn.1988) (assessing civil penalty to defendant landowner even though court found he had reasonably relied on government misconduct and exercised diligent efforts to comply with law). III. BYPASSES 31. In its July 3, 1991 order, the court held that the city had committed 104 bypassing and nonreporting violations of its permit and thus the Clean Water Act. IV. SECONDARY TREATMENT 32. In 1972, Congress amended the Clean Water Act to require all municipalities with sewage plants to achieve effluent limitations based on secondary treatment by July 1, 1977. 33 U.S.C. § 1311(i)(l). 33. Congress later extended the initial deadline for compliance with secondary treatment to July 1, 1988. Under the Act, if a POTW needed an permit extension because of ongoing construction, it could apply for one under Section 301(i), but this extension could last no later than July 1, 1988. Congress has not enacted any further extensions of this statutory deadline. .34. The Act now mandates that all POTWs meet “secondary treatment” effluent limitations by July 1, 1988. 33 U.S.C. § 1311(i)(l). 35. After July 1, 1988, all treatment plants which have not yet been officially granted a section 301(h) waiver permit must be in compliance at the secondary treatment level after the July 1, 1988 deadline has passed. The pendency of a section 301(h) waiver and other permit modification applications does not excuse noncompliance with the Act in the interim. See July 3, 1991 Order at 22 (citing United States v. Metropolitan District Commission, 23 E.P.C. 1350, 1357 (D.Mass.1985); Sierra Club" }, { "docid": "12504949", "title": "", "text": "Works, 93rd Cong., 1st Sess., A Legislative History of the Water Pollution Control Act Amendments of 1972, 788 (Comm. Print, 1973) (2 vols.) (hereinafter cited as “Legis.Hist.”)] [Emphasis added.] Senator Muskie, a principal author of the Act, commented that the July 1, 1977 deadline does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977 . . . [Legis.Hist. 162] [Emphasis added.] And finally, the Senate Report notes that the EPA must act quickly in determining whether particular point sources must satisfy the technology-base standards of Section 301(b)(1)(A) and (B) or more stringent water quality-based effluent limits under Section 301(b)(1)(C) because [t]he deadlines established to achieve effluent limitations are strict [and] [s]ources of pollution, whether they are cities or industries, must know what the requirements are in order to proceed on schedule with their construction program. [S.Rep. No. 92-414, 92d Cong., 2nd Sess., U.S. Code Cong. & Admin.News 1972, pp. 3668, 3710 (1971), Legis.Hist. 1462.] More importantly, Congress actually declined to write the statute as appellant would now have us construe it. During hearings on the House bill, William Ruckelshaus, then head of EPA, and appellee Train, then Chairman of the Council on Environmental Quality, urged that the Act permit extension of the 1977 deadline in cases where, despite good faith efforts, compliance is impossible. Significantly, Mr. Ruckelshaus also recommended that “the secondary treatment requirement [of Section 301(b)(1)(B)] should only apply to projects for which new Federal grants are provided.” The bill which the House subsequently passed empowered EPA to extend the 1977 deadline for up to two years in cases where compliance is physically or legally impossible; but, despite the recommendation of Mr. Ruckelshaus, it did not limit the applicability of Section 301(b)(1)(B) to those facilities receiving federal assistance. Moreover, even the provision authorizing case-by-case extension of the deadline was later deleted without comment by the Conference Committee. This clearly provides strong support for the conclusion that Congress meant for the July 1, 1977 deadline to be rigid and that it did not" } ]

[ { "docid": "23405435", "title": "", "text": "syndrome. However, he is dubious that there are real experts in the area because of the very unique nature of the disease and its diagno sis. He was of the opinion that Snow was not afflicted with CFS. Standard then denied Snow’s claim on the ground that she did not meet the criteria for CFS as established by the Center for Disease Control. This litigation followed. JURISDICTION The district court had jurisdiction over this ERISA matter pursuant to 29 U.S.C. § 1132(e)(1) and 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. STANDARDS OF REVIEW In an ERISA case, there are two levels at which the standard of review must be considered. The first level involves the standard for the district court’s and our review of plan administrators’ determinations. The second involves the standard for our review of the district court’s determinations. We will first consider the first level. A determination that denies benefits under an ERISA plan is reviewed de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). When discretion is conferred, the exercise of that discretion is reviewed under the arbitrary or capricious standard, or for abuse of discretion, which comes to the same thing. See Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1321 & n. 1 (9th Cir.1995); McKenzie v. General Tel. Co., 41 F.3d 1310, 1314 (9th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1697, 131 L.Ed.2d 560 (1995); Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 (9th Cir.1993). We have not been stingy in our determinations that discretion is conferred upon plan administrators. That is sensible because a proper and efficient functioning of an ERISA plan does often depend upon the use of discretion by the plan fiduciaries. As we have pointed out, a plan does confer discretion when it “includes even one important discretionary element, and the power to" } ]

[ { "docid": "12062213", "title": "", "text": "of discretion standard. Where, as here, the abuse of discretion standard applies in an ERISA benefits denial case, a motion for. summary judgment is, in most respects, merely the conduit to bring the legal question before the district court and the usual tests of summary judgment, such as whether a genuine dispute of material fact exists, do not apply. Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929-30 (9th Cir.2012) (citations, quotation marks omitted). In addition, “judicial review of benefits determinations is limited to the administrative record— that is, the record upon which the plan administrator relied in making its benefits decision[.]” Id. at 930 (internal quotation marks omitted). “[W]hen a court must decide how much weight to give a conflict of interest under the abuse of discretion standard!]] . . the court may consider evidence outside the [administrative] record.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 970 (9th Cir.2006) (en banc). In considering “evidence outside the administrative record to decide the nature, extent, and effect on the decision-making process of any conflict of interest[,]” id. traditional rules of summary judgment apply, and “summary judgment may only be granted if after viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact.” Stephan, 697 F.3d at 930 (internal quotation marks omitted). “[T]he decision on the merits, though, must rest on the administrative record once the conflict (if any) has been established, by extrinsic evidence or otherwise.” Abatie, 458 F.3d at 970. DISCUSSION I. The Court applies “abuse of discretion” review. A denial of benefits by an ERISA plan administrator is reviewed de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The grant of discretion must be unambiguous. Abatie, 458 F.3d at 963. Here, the LTD policy’s “Allocation of Authority” clause provides that: Except for those functions which the Group" }, { "docid": "715260", "title": "", "text": "However, on cross-examination Northwest surprised Dr. Gold by playing the videotape. Dr. Gold then testified that if he had been provided with the videotape at the time of his November 2002 evaluation, he would not have concluded that Opeta was totally and permanently disabled. The district court also allowed Dr. Meal-er to testify regarding Opeta’s medical condition and treatment, as well as his impressions of the videotape surveillance which he had previously viewed as part of his review of Opeta’s claim. Additionally, the district court ordered the videographer to testify as to what he observed while conducting the video surveillance of Opeta. The district court’s judgment found that Opeta was not totally and permanently disabled within the meaning of the Plan and thus, not eligible for disability retirement benefits. II. In ERISA cases, we review de novo the district court’s choice and application of the appropriate standard of review. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962 (9th Cir.2006) (en banc). We review the district court’s decision to admit or exclude evidence that was not before the plan administrator for an abuse of discretion. See Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 985 (9th Cir.2001); Friedrich, 181 F.3d at 1110-11. We review for clear error underlying findings of fact. Friedrich, 181 F.3d at 1109. III. The district court correctly ruled that the appropriate standard for review of the Plan’s denial of benefits is de novo. The district court reviews a challenge to an ERISA plan’s denial of benefits de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). We have held that the default standard of review in ERISA cases is de novo and that discretion exists only if it is “ ‘unambiguously retained.’ ” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th" }, { "docid": "5688368", "title": "", "text": "September 30, 2007. A summary of Dr. Mahawar’s findings demonstrates that, of these 202 claimants, he found that 193 of them were capable of working full-time in some type of position under appropriate restrictions. See Hasselman Dec. Ex. 3. In a phone conversation with Dr. Glass-man about Plaintiffs disability claim, Dr. Mahawar stated his belief that anybody can work in a sedentary occupation. Id. Ex. 30 at PI 135. He also expressed his view, which is reflected in his report, that only objective findings such as atrophy are acceptable indications of disability. CONCLUSIONS OF LAW I. Standard of Review Pursuant to Rule 52 of the Federal Rules of Civil Procedure, each of the parties moves for judgment in its favor on Plaintiffs ERISA claims. Under Rule 52, the court conducts what is essentially a bench trial on the record, evaluating the persuasiveness of conflicting testimony and deciding which is more likely true. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir.1999). The standard of review of a plan administrator’s denial of ERISA benefits depends upon the terms of the benefit plan. Absent contrary language in the plan, the denial is reviewed under a de novo standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). However, if “the benefit plan expressly gives the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the plan’s terms,” an abuse of discretion standard is applied. Id. at 102, 109 S.Ct. 948. Under this standard, the administrator’s decision will be upheld if is reasonable and supported by substantial evidence in the administrative record as a whole. McKenzie v. General Tel. Co. of Cal, 41 F.3d 1310, 1316-17 (9th Cir.1994). Here, there is no dispute that the Plan confers discretion upon Hartford. Plaintiff asserts, however, that the Court should nonetheless conduct de novo review. He notes that under Abatie v. Alta Health & Life Insurance Co., 458 F.3d 955 (9th Cir.2006) (en banc), violations of ERISA procedure that are “so flagrant as to alter the substantive relationship between the" }, { "docid": "5936281", "title": "", "text": "computer systems, and the paucity of documentation in the Clinic’s files. Alta noted that it was prejudiced by Dr. Abatie’s failure to file a claim because of the importance of setting aside reserves, managing the claim, and periodically verifying the continuance of the alleged disability. In addition, Alta concluded that there was insufficient proof that Dr. Abatie was totally disabled from all occupations until his death; it cited this conclusion as a second, additional reason for denying the claim. After a bench trial, the district court held that abuse of discretion review applied and that Alta did not abuse its discretion in denying Abatie’s claim. II When a plan administrator’s denial of benefits is challenged under ERISA, the default rule holds that courts review the administrator’s denial de novo, “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Abatie vigorously argues that we must review Alta’s denial of benefits de novo because the Plan does not adequately grant discretion to Alta. Abatie also argues that even if the Plan does effectively grant Alta discretion, Alta’s behavior manifested a serious conflict of interest which demands heightened review. We address, and reject, each contention. A Only if a plan unambiguously grants discretion to the administrator to determine eligibility will we review an administrator’s denial of benefits for an abuse of discretion. Id.; Kearney v. Standard Ins. Co., 175 F.3d 1084, 1088-89 (9th Cir.1999) (en banc). The standard of review depends on whether the “plan documents unambiguously say in sum or substance that the Plan Administrator or fiduciary has authority, power, or discretion to determine eligibility or to construe the terms of the Plan[.]” Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000). Although the plan must effectively grant the administrator discretion in interpreting the plan or determining eligibility, there is no requirement that the word “discretion” be used. Id. (observing that “there is no magic" }, { "docid": "21669376", "title": "", "text": "Decker’s arbitrary rejection of these opinions constitutes material, probative evidence that it was operating under an actual conflict. Nord further argues that, because Black & Decker was operating under a conflict of interest, the district court should have reviewed the administrator’s decision de novo. The standard of judicial review for a disability determination by an insurer covered under ERISA varies depending on the plan language. We review de novo the decision of a plan administrator to deny benefits “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); see also Tremain v. Bell Indus., Inc., 196 F.3d 970, 976 (9th Cir.1999). The plan language must be explicit. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (holding that plan language stating that the insurer will pay benefits “upon receipt of satisfactory written proof’ of disability was ambiguous, and thus did not confer discretion). When the plan language confers discretion, we review the decision of the plan administrator under an abuse of discretion standard. Tremain, 196 F.3d at 976. In this case, the plan language clearly confers discretion upon the Plan Manager both to determine benefits eligibility and to interpret the terms of the Plan. However, the fact that the terms of the Plan confer broad discretionary authority upon the plan administrator does not end our inquiry into the proper standard of review. An insurer with a “dual role as the administrator and funding source for the [p]lan” has an inherent conflict of interest. Lang, 125 F.3d at 797. In Firestone Tire & Rubber Co., the Supreme Court stated that “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a facto [r] in determining whether there is an abuse of discretion.” 489 U.S. at 115, 109 S.Ct. 948 (internal quotation marks omitted). We have held that our review" }, { "docid": "21229087", "title": "", "text": "63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Parrino v. FHP, Inc., 146 F.3d 699, 703-04 (9th Cir.1998). Venue in the United States District Court for the Central District of California is invoked pursuant to 29 U.S.C. § 1132(e)(2). The parties do not dispute the facts requisite to federal jurisdiction and venue. II. Standard Of Review A “denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Where the plan vests such discretionary authority in the administrator or fiduciary, the Court reviews the denial of benefits under the plan for an abuse of discretion. Id. However, in order for the abuse of discretion standard to apply, the Plan must unambiguously grant discretion to the administrator or fiduciary. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999). In this case, the Plan provides in relevant part that: The Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious. (AR 0102). The Court concludes that the foregoing language contained in the LTD Plan unambiguously grants discretion to MetLife. Once the Court concludes that the Plan vests discretionary authority in the administrator or fiduciary, the Court must determine whether the administrator or fiduciary is operating under a conflict of interest. Under the Ninth Circuit’s recent en banc decision in Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (2006) in which the Ninth Circuit overruled Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317 (1995), the “[a]buse of discretion [standard of] review applies" }, { "docid": "22175410", "title": "", "text": "ORDER The memorandum disposition filed July 7, 1999, is redesignated as an authored opinion by Judge Lay. OPINION LAY, Circuit Judge: Mary Anne Bendixen appeals the district court’s grant of summary judgment in favor of her prior employer’s long-term disability insurer, Standard Insurance Company, in her Employee Retirement Income Security Act (29 U.S.C. § 1001) action, arguing that Standard Insurance Company improperly denied her claim for long-term disability benefits. Bendixen alleged that she became disabled by depression when she was harassed and terminated by her prior employer for refusing to lie on her employer’s behalf in connection with a lawsuit. There are two basic issues presented in this appeal: (1) whether the plan administrator’s decision to deny benefits should be reviewed under a less deferential or “heightened” abuse of discretion standard because of a “serious” conflict of interest; and (2) whether the district court erred in finding that the plan administrator did not abuse its discretion in (a) denying Bendix-en’s claim for disability benefits on the grounds that her impairment did not become disabling until after she was terminated and (b) finding that her impairment did not prevent her from performing the duties of her occupation with another employer. The district court granted summary judgment in favor of the insurer. We affirm. Standard of Review Standard Insurance Company (“Standard”) claims that the decision of the plan administrator should be reviewed for an abuse of discretion. Bendixen asserts that the plan administrator has a serious conflict of interest that warrants less deferential scrutiny by the district court. The Supreme Court held in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), that when an ERISA plan vests the plan administrator or fiduciary with discretionary authority to determine benefit eligibility, the district court ordinarily reviews the decision to grant or deny benefits for an abuse of discretion. This court recently clarified its interpretation of Firestone in Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.1999) (en banc). In Kearney, this court sitting en banc reiterated the Supreme Court’s holding in Firestone, stating:" }, { "docid": "16075135", "title": "", "text": "benefits to an ERISA plan beneficiary. See 29 U.S.C. §§ 1132(a)(1)(B); 1132(e). 2. ERISA benefits determinations are to be reviewed de novo, “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). An ERISA benefits determination under a plan that “unambiguously” confers such discretionary authority shall be reviewed under an abuse of discretion standard. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999). In this case, both the MET Policy and UNUM Policy unambiguously confer discretion to determine eligibility for benefits and interpret plan terms. Therefore, the Court reviews the MET and UNUM denials of benefits under an abuse of discretion standard. II. Mitchell’s Claim With MET A. MET’s Conñict of Interest 3. In Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 967-69 (9th Cir.2006), the Ninth Circuit held that district courts should employ a case-by-case approach to abuse of discretion review in ERISA cases. Id. This approach allows district courts to consider the “kind of inherent conflict that exists when a plan administrator both administers the plan and funds it, as well as other forms of conflict.” Id. at 967. 4. The Ninth Circuit has offered guidance on tailoring review to the particular facts and circumstances of a ERISA administrator’s denial of benefits: The level of skepticism with which a court views a conflicted administrator’s decision may be low if a structural conflict of interest is unaccompanied, for example, by any evidence of malice, of self-dealing, or of a parsimonious claims-granting history. A court may weigh a conflict more heavily if, for example, the administrator provides inconsistent reasons for denial, fails adequately to investigate a claim or ask. plaintiff for necessary evidence, fails to credit claimant’s reliable evidence, or has repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record. Id. at 968 (citations omitted). 5. Ultimately, the “district" }, { "docid": "9869718", "title": "", "text": "Dr. Raford reviewed the claim and determined that plaintiff was not totally disabled. Plaintiffs appeal was denied on December 15, 2003. II. Conclusions of Law A. Standard of Review The disability insurance plan at issue in this case is a defined benefit plan subject to the provisions of the Employment Retirement Income Security Act (“ERISA”). 29 U.S.C. §§ 1001 et seq. A denial of ERISA benefits is reviewed de novo unless “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility benefits or construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Under Firestone, the default presumption is that the administrator has no discretion and must show that the plan confers discretionary authority. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999) (en banc). If the benefit plan confers discretion on the administrator, a reviewing court must apply an abuse of discretion standard. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999); McClure v. Life Ins. Co. of North America, 84 F.3d 1129, 1132 (9th Cir.1996). The Viacom LTD Plan at issue in this cases contains the following grant of discretion: For the purpose of section 503 of Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA), Aetna is a fiduciary with complete authority to review all denied claims for benefits under this policy ... In exercising such fiduciary responsibility, Aetna shall have discretionary authority to: determine whether and to what extent employees and beneficiaries are entitled to benefits; and construe any disputed or doubtful terms of this policy. Aetna shall be deemed to have properly exercised such authority unless Aetna abuses its discretion by acting arbitrarily and capriciously. This explicit grant of discretion would, therefore, make the Court’s review of the decision to deny benefits subject to an abuse of discretions standard, and the Court would reverse the decision only if the administrator acted arbitrarily and capriciously. The plaintiff argues, however, that Aet-na is not entitled to an abuse of discretion" }, { "docid": "5797660", "title": "", "text": "court and sought summary judgment. The district court granted Reliance’s third summary judgment motion. The district court concluded that, as long as Reliance had considered the contrary opinion of Thomas’ doctors when making its coverage decision, Reliance had not abused its discretion in discrediting those opinions and denying Thomas’ claim. DISCUSSION I. Standard of Review “[A] denial of benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The principal issue on appeal is whether the district court erred in reviewing Reliance’s decision for abuse of discretion based on its conclusion that the Policy granted Reliance discretionary authority. We review the district court’s grant of summary judgment de novo. See Lang v. Long-Term Disability Plan, 125 F.3d 794, 797 (9th Cir.1997). We also review de novo Thomas’ “contention that the district court did not apply the proper standard of review.” McDaniel v. Chevron Corp., 203 F.3d 1099, 1107 (9th Cir.2000). Our consideration of Thomas’ claim is guided by our recent en banc decision, Kearney v. Standard Ins. Co., in which we held that district courts must review claims de novo unless the discretion to grant or deny claims is “unambiguously retained” by a plan administrator or fiduciary. 175 F.3d at 1090 (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992)). We concluded that unambiguous retention of discretion by an administrator or fiduciary is required because of the well-settled rule of policy interpretation dictating that “ambiguities are construed in favor of the insured.” Id. Applying this principle to the plan at issue in that case, we held that a policy that conditions payment of benefits on the “receipt of satisfactory written proof’ of disability is ambiguous because it is susceptible of at least three interpretations, two of which would not confer absolute discretion on the administrator or fiduciary. Id. at 1089-90 (quoting benefit plan)" }, { "docid": "22175411", "title": "", "text": "after she was terminated and (b) finding that her impairment did not prevent her from performing the duties of her occupation with another employer. The district court granted summary judgment in favor of the insurer. We affirm. Standard of Review Standard Insurance Company (“Standard”) claims that the decision of the plan administrator should be reviewed for an abuse of discretion. Bendixen asserts that the plan administrator has a serious conflict of interest that warrants less deferential scrutiny by the district court. The Supreme Court held in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), that when an ERISA plan vests the plan administrator or fiduciary with discretionary authority to determine benefit eligibility, the district court ordinarily reviews the decision to grant or deny benefits for an abuse of discretion. This court recently clarified its interpretation of Firestone in Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.1999) (en banc). In Kearney, this court sitting en banc reiterated the Supreme Court’s holding in Firestone, stating: “denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone, 489 U.S. at 115, 109 S.Ct. 948. That means the default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision. Kearney, at 1089 (emphasis added). The court in Kearney held that the policy language providing that Standard would pay disability benefits “upon receipt of satisfactory written proof that you have become DISABLED” was ambiguous and, therefore, should be reviewed de novo. Id. at 1088. The majority of the en banc court then determined that there was a genuine dispute of material fact and on that basis reversed the grant of summary judgment rendered by the district court. In so doing, the court remanded the case for a trial de novo in" }, { "docid": "23051814", "title": "", "text": "Silver and Jares. II. STANDARDS OF REVIEW We review de novo a district court’s grant of a motion for summary judgment. Bergt v. Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1142 (9th Cir.2002). We also review de novo “a district court’s choice and application of the standard of review to decisions by fiduciaries in ERISA cases.” Abatie, 458 F.3d at 962. III. DISCUSSION The Plan at issue in this case included broad language granting Metlife discretionary authority to both interpret the Plan and determine eligibility for benefits. We determined nearly identical language unambiguously conferred discretionary authority to administer benefits upon Met-Life in Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 866-67 (9th Cir.2008), and we conclude the same here: the Heald College Long-Term Disability Plan “unambiguously confers discretionary authority on MetLife to administer benefits claims.” Id. at 867. A. Defining the Contours of the Abuse of Discretion Standard Where an ERISA plan confers discretionary authority upon a plan administrator to determine eligibility for benefits, we generally review the administrator’s decision to deny benefits for an abuse of discretion. Abatie, 458 F.3d at 963 (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). However, as the parties agree that MetLife operates under a structural conflict of interest as an entity that both determines eligibility for benefits and pays benefits awards, the precise standard of review in this case requires our consideration of Abatie, 458 F.3d 955, and the recent United States Supreme Court opinion in Metro. Life Ins. Co. v. Glenn, — U.S.-, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) (MetLife). Where a plan administrator operates under a conflict of interest — in this case, a structural conflict — a court must weigh the conflict “ ‘as a factor in determining whether there is an abuse of discretion.’ ” MetLife, 128 S.Ct. at 2348 (citing Firestone, 489 U.S. at 115, 109 S.Ct. 948) (emphasis in original). As noted in Abatie, consideration of the conflict can “affect judicial review,” and a court is" }, { "docid": "715261", "title": "", "text": "evidence that was not before the plan administrator for an abuse of discretion. See Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 985 (9th Cir.2001); Friedrich, 181 F.3d at 1110-11. We review for clear error underlying findings of fact. Friedrich, 181 F.3d at 1109. III. The district court correctly ruled that the appropriate standard for review of the Plan’s denial of benefits is de novo. The district court reviews a challenge to an ERISA plan’s denial of benefits de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). We have held that the default standard of review in ERISA cases is de novo and that discretion exists only if it is “ ‘unambiguously retained.’ ” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992)). “We have held that ERISA plans are insufficient to confer discretionary authority on the administrator when they do not grant any power to construe the terms of the plan.” Abatie, 458 F.3d at 964. In Ingram v. Martin Marietta Long Term Disability Income Plan, 244 F.3d 1109, 1112-13 (9th Cir.2001), we concluded that even though the plan identified the carrier as “solely ... responsible” for providing benefits, deciding all claims, and controlling the operation and administration of the plan, “those provisions merely identified the plan administrator’s tasks, but bestowed no power to interpret the plan,” Abañe, 458 F.3d at 964, and therefore de novo review was appropriate. Here, the Plan nowhere states that the plan administrator, Northwest, has the full or sole discretion to interpret the terms of the plan. By its terms, the final decision as to eligibility is made not by Northwest, but by an independent mutually acceptable physician. Cf. Abatie, 458 F.3d at 965 (concluding that a plan conferred discretion because plan administrator had exclusive “responsibility to interpret the terms of" }, { "docid": "15729063", "title": "", "text": "to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). II. Judicial Review of ERISA Disability Claims ■ The disability insurance plan at issue in this case is a defined benefit plan subject to the provisions of the Employment Retirement Income Security Act (“ERISA”). 29 U.S.C. §§ 1001 et seq. A denial of ERISA benefits is reviewed de novo unless “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility benefits or construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Under Firestone, the default presumption is that the administrator has no discretion and must show that the plan confers discretionary authority. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999) (en banc). If the benefit plan confers discretion on the administrator, a reviewing court must apply an abuse of discretion standard. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999); McClure v. Life Ins. Co. of North America, 84 F.3d 1129, 1132 (9th Cir.1996). Under the abuse of discretion standard, the court’s review is limited to the administrative record, and the decision of an administrator will not be disturbed unless the court determines that the decision was arbitrary or capricious. See McKenzie v. Gen. Tel. Co. of Cal., 41 F.3d 1310, 1316 (9th Cir.1994); Clark v. Wash. Teamsters Welfare Trust, 8 F.3d 1429, 1431 (9th Cir.1993). “The touchstone of arbitrary and capricious conduct is unreasonableness.” Id. at 1432. In contrast, under the de novo standard, the normal summary judgment standard applies, and the district court may grant summary judgment if there are no genuine issues of material fact in dispute. Tremain v. Bell Ind., 196 F.3d 970, 978 (9th Cir.1999). DISCUSSION Liberty’s disability policy unambiguously confers discretionary authority upon the insurance company to make decisions regarding plan coverage and benefits. See Gallegos Dec., Exh. A, at GBP-021; McGee Dec., Exh." }, { "docid": "14015715", "title": "", "text": "receive Social Security Disability benefits. Docket No. 72 (Moody Dec.) ¶ 2. CONCLUSIONS OF LAW I.Standard of Review 1. ERISA provides for judicial review of a decision to deny benefits to an ERISA plan beneficiary. See 29 U.S.C. § 1132(a)(1)(B). 2. ERISA creates federal court jurisdiction to hear such a claim. See 29 U.S.C. § 1132(e). 3. In determining the appropriate standard of review, a court should be guided by principles of trust law, analogizing a plan administrator to the trustee of a common law trust. A benefit determination should be considered to be a fiduciary act, i.e., an act in which the administrator owes a special duty of loyalty to the plan beneficiaries. Metropolitan Life Ins. Co. v. Glenn, — U.S.-,-, 128 S.Ct. 2343, 2347, 171 L.Ed.2d 299 (2008), quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111-113, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). 4. ERISA benefits determinations are to be reviewed de novo, unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Glenn at 2348; see also Firestone at 115, 109 S.Ct. 948. 5. Where an administrator has retained discretionary authority, “trust principles make a deferential standard of review [i.e., review for abuse of discretion] appropriate.” Glenn at 2348, quoting Firestone at 111, 109 S.Ct. 948. The court must evaluate all the facts and circumstances to make something “akin to a credibility determination about the insurance company’s or plan administrator’s reason for denying coverage under a particular plan and a particular set of medical and other records.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir.2006). 6. An administrator has discretion only where it is “unambiguously retained.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999), quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992). In this case, the parties agree that defendant retained such discretion. See P-025 (policy provision regarding “interpretation of the policy”). 7. Where a benefit plan gives discretion to an administrator who is operating under a" }, { "docid": "20039548", "title": "", "text": "the abuse of discretion standard and arguing that summary judgment should be entered on MetLife’s counterclaim seeking repayment of benefit overpayments made to plaintiff in light of her workers compensation payments. DISCUSSION I. Standard of review The threshold issue is whether the Court should review the decision to deny further benefits de novo or under the abuse of discretion standard. The Court reviews benefits denials de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits”; if the plan does grant such discretionary authority, the Court reviews the administrator’s decision for abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Salomaa v. Honda Long Term Disability Plan, 637 F.3d 958, 965 (9th Cir.2011). Under the abuse of discretion standard, a decision is not “arbitrary and capricious,” unless it is “ ‘not grounded on any reasonable basis.’ ” Id. (as amended by Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir.2011)) (quoting Horan v. Kaiser Steel Retirement Plan, 947 F.2d 1412, 1417 (9th Cir.1991)). However, where the administrator of the benefits plan has a conflict of interest, the abuse of discretion review is further modified and the Court must review the benefits decision “skeptically.” A conflict of interest arises where: the same entity makes the coverage decisions and pays for the benefits. This dual role always creates a conflict of interest, [citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) ], but it is “more important ... where circumstances suggest a higher likelihood that it affected the benefits decision.” [Glenn, 554 U.S. at 117, 128 S.Ct. 2343]. The conflict is less important when the administrator took “active steps to reduce potential bias and to promote accuracy,” id., such as employing a “neutral, independent review process,” or segregating employees who make coverage decisions from those who deal with the company’s finances. [Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 n. 7 (9th Cir.2006) (en banc).] The" }, { "docid": "1551522", "title": "", "text": "must conduct, pursuant to Rule 52, Federal Rules of Civil Procedure, a bench trial based on the administrative record and such other evidence as the Court admits. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir.) (en banc) cert. den. 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999). II. Parties’ Motions A. ERISA Standard of Review ERISA provides Plaintiff with a federal cause of action to recover the benefits she claims are due under the Plan. 29 U.S.C. § 1132(a)(1)(B). The standard of review of a plan administrator’s denial of ERISA benefits depends upon the terms of the benefit plan. Absent contrary language in the plan, the denial is reviewed under a de novo standard. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). However, if “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” an abuse of discretion standard is applied. Id.; Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471 (9th Cir.1993). Where discretionary authority has been granted to the plan administrator, the Ninth Circuit has applied an “arbitrary and capricious” standard in determining whether the plan administrator abused its discretion. McKenzie v. General Telephone Co. of California, 41 F.3d 1310, 1314 (9th Cir.1994); Taft, 9 F.3d at 1471, n. 2 (use of the term “arbitrary and capricious” versus “abuse of discretion” is a “distinction without a difference”). Here, the plan grants Liberty discretion to interpret the policy, as well as the power to decide eligibility for benefits. Because the plan grants Liberty this discretionary authority, an arbitrary and capricious or abuse of discretion standard should be applied, unless a conflict of interest triggers the less deferential standard. See, e.g., Taft, 9 F.3d at 1471. If “a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115, 109 S.Ct. 948." }, { "docid": "13667961", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE I. INTRODUCTION This action began in November 2008 when Kerilei Oldoerp sued Wells Fargo & Company Long Term Disability Plan and Metropolitan Life Insurance Company (“MetLife”), challenging the denial of her claim for long-term disability benefits. Following a bench trial in 2011, an order was issued finding that MetLife had not abused its discretion in denying Oldoerp’s claim. The order applied an “abuse of discretion” standard because certain Met-Life Summary Plan Description (SPD) documents confer significant discretionary authority upon MetLife. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (courts review denial of benefits “under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”). Subsequent to that decision, the Supreme Court in a separate action determined that extraneous documents, like SPDs, “[are] not [themselves] part of the plan.” CIGNA Corp. v. Amara, — U.S. —, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011). Accordingly, in this case, the Ninth Circuit reversed on appeal, holding that MetLife’s decision is subject to de novo review, not an abuse of discretion standard. Based on subsequent oral argument, the parties’ written submissions, the administrative record, and some additional extrinsic evidence, the court finds that MetLife erred in denying Oldoerp’s claim. This order comprises the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52(a). II. EVIDENTIARY RULINGS Ordinarily, cases arising under the Employee Retirement Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., are decided solely on the basis of the administrative record that was before the plan administrator at the time its decision was made. See Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.1999) (en banc) (“If a court reviews the administrator’s decision, whether de novo ... or for abuse of discretion, the record that was before the administrator furnishes the primary basis for review.”). In some cases, however, additional evidence may be" }, { "docid": "16136089", "title": "", "text": "class certification was not proper. DISCUSSION I. Appellants Cannot Receive Benefits for Past Service Credit with Golden Eagle under the Terms of the Retirement Plan. A. The District Court Applied the Correct Standard of Review. Under 29 U.S.C. § 1132(a)(1)(B), a civil action may be brought “by a participant, beneficiary, or fiduciary [ ] to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” Denials of benefits under this provision are “to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). If the administrator or fiduciary who is given discretionary authority operates under a conflict of interest, “that conflict must be weighed as a facto[r] in determining whether there is an abuse of discretion.” Id. (citing Restatement (Sec ond) of Trusts § 187, Comment d (1959)) (internal quotations omitted). De novo review applies in instances where the administrator has a serious conflict of interest that the beneficiary can demonstrate with “material, probative evidence, beyond the mere fact of an apparent conflict, tending to show that the fiduciary’s self-interest caused a breach of the administrator’s fiduciary obligations to the beneficiary.” Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978, 985 (9th Cir.2005) (quotation marks omitted). The administrator must have engaged in “wholesale and flagrant violation[ ] of the procedural requirements of ERISA and thus act[] in utter disregard of the underlying purpose of the plan as well.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 971 (9th Cir.2006). Both parties agree that the Retirement Plan gives the Liberty Mutual Board, as administrator, discretion to interpret the Retirement Plan. However, Appellants argue that there is a structural conflict of interest because of the close connection between Liberty Mutual, who funds the Retirement Plan, and the Liberty" }, { "docid": "20026884", "title": "", "text": "is totally disabled. For the reasons described below, the court concludes that Mr. Rabbat is entitled to long-term disability benefits under the terms of the Plan. PROCEDURAL ISSUES Before turning to the merits of the parties’ arguments, the court must determine whether to resolve this case on the parties’ cross motions for summary judgment (Dkts. 24 and 26) or on a trial on the administrative record. The answer depends on what standard of review the court applies. “ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Supreme Court, therefore, has prescribed a simple test to determine what standard of review a district court should apply. If the benefits plan provides the plan administrator with “discretionary authority to determine eligibility for benefits,” id. at 115, 109 S.Ct. 948, review is for abuse of discretion. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). If the plan does not provide the plan administrator with such authority, however, review is de novo. Id. Here, the Plan provides that “the Plan Administrator has the discretionary authority to determine eligibility for benefits[.]” Administrative Record (“AR”) at 59. Nonetheless, the parties have stipulated to de novo review. Dkt. 16. The court accepts the parties’ stipulation and reviews the record de novo. See Rorabaugh v. Cont’l Cas. Co., 321 Fed.Appx. 708, 709 (9th Cir.2009) (court may accept parties’ stipulation to de novo review). The parties have filed cross motions for summary judgment. Dkts. 24 and 26. The Ninth Circuit has often held that in an ERISA benefits case, where the court’s review is for abuse of discretion, summary judgment is a proper “conduit to bring the legal question before the district court.” Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999), overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir.2006) (en banc) (“Where the decision to grant or" } ]

[ { "docid": "6828667", "title": "", "text": "three variables in fact patterns involving requests for relief from the automatic stay to permit secured creditors to proceed with foreclosure actions to sell the residence real estate of the Debtors. DECISION I The adversarial proceedings were combined to dispose of the issues in light of this Court’s decision in First Inv. Co. v. Custer, et al., 18 B.R. 842, 8 B.C.D. 1067 (Bkrtcy.1982), and an apparent misunderstanding and misinterpretation of that decision. First, it should be emphasized that the rationale of Custer is not intended to be at variance with that of In Re Soderlund, 18 B.R. 12, B.L.D. ¶ 68,605 (D.C.1981), as to the law of acceleration of obligations as between a debtor-mortgagor and the mortgagee under Ohio law. The thrust of Custer is to recognize the effect of Ohio law as found in Soderlund in a Chapter 13 context, but to preserve and protect monetary values existing for the benefit of all of the parties interested in the debtors’ estates, particularly other creditors, which is not presented in Soderlund. An accelerated mortgage remains a security interest, and nothing else, entitled to adequate protection. The Chapter 13 jurisdiction recognizes the acceleration, as between the parties to the original mortgage contract, but protection may be provided by the court to all of the parties by confirming a proposed plan which effectuates the interest and purposes of the Congress, whether by statute or in equity, despite the contractual acceleration. To this extent, each proposed plan must be scrutinized as to statutory requirements, especially its feasibility. One important factor to consider is the amount and duration of pre-accelerated defaults in mortgage contract payments. Stated differently was the acceleration precipitated for the purpose of an artificial liquidation of a debtor’s home? Or, is there a serious delinquency which cannot be feasibly cured during the term of a Chapter 13 administration? Another factor is the extent and length of pre-acceleration efforts by the mortgagee seeking contract compliance. Were contract rights actively explored and mediated or acceleration delayed, to enable debtor to cure delinquencies? Court jurisdiction cannot be invoked by a debtor for the" } ]

[ { "docid": "7731488", "title": "", "text": "Code Against this background of Delaware law the Court turns its attention to Chapter 13 of the Bankruptcy Code. The relevant provisions of Chapter 13 are found in sections 1322(b)(2), (3) and (5) which state: (b) ... the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; .... 11 U.S.C. § 1322(b). The case law interpreting these sections is in hopeless disarray. A recent survey states well this confusion in the existing case law. The bankruptcy court in In re Gwinn, 34 B.R. 936 (Bkrtcy.S.D.Ohio1983), explained: An examination of the reported cases indicates that five basic positions have emerged. A small minority of courts have held that deceleration/reinstitution is not available once the mortgagee has exercised his contractual right to accelerate, regardless of whether or not the mortgagee has obtained a judgment. See In re Soderlund [18 B.R. 12] (Dist.Ct. [(S.D.Ohio 1981)]), supra; Matter of Allen, 17 B.R. 119 (Bkrtcy.N.D.Ohio 1981); In re La Paglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981). Another, more sizeable group of cases have held that while deceleration is possible prior to judgment, it is no longer available once the mortgagee has obtained a judgment on the mortgage note. See In re Anderson [16 B.R. 697, (Bkrtcy.S.D.Ohio 1982) ], supra; In re White, 22 B.R. 542 (Bkrtcy.D.Del.1982); In re Mattocks, 15 B.R. 379 (Bkrtcy.E.D.N.Y.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Jenkins, 14 B.R. 748 (Bkrtcy.N.D.Ill.1981); In re Land, 14 B.R. 132 (Bkrtcy.N.D.Ohio 1981); Matter of Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981); In re Canady, 9 B.R. 428 (Bkrtcy.D.Conn.1981);" }, { "docid": "8341241", "title": "", "text": "7 B.C.D. 749, BLD ¶ 67906, 4 C.B.C.2d 113 (Bkrtcy.Conn.1981); In re Land, 14 B.R. 132, 8 B.C.D. 90, 5 C.B.C.2d 145 (Bkrtcy.N.D.Ohio 1981); In re Pearson, 10 B.R. 189, 7 B.C.D. 567, BLD ¶ 67942, 4 C.B.D.2d 57 (Bkrtcy.E.D.N.Y.1981); In re Jenkins, 14 B.R. 748, 8 B.C.D. 292, 3 BLD. ¶ 68394 (Bkrtcy.N.D.Ill.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). These decisions leave the clear impression that if the mortgage obligations had not been reduced to judgment before the Chapter 13 case filings that those courts would have permitted curing of the mortgage default despite the fact that the mortgage obligation had been accelerated by adhesion clauses therein. A reading of §§ 1322(b)(5) and 1328(a)(1) of the Bankruptcy Code indicates that the intent of the Congress from the phrase “curing of any default,” as used in § 1322(b)(5), means placing the parties in the position they would have been if no default had occurred. The term “the last payment” cannot refer to the time when payment is due after acceleration, because acceleration is merely one contractual consequence of default and cannot eliminate or negate the other terms contained in the basic promissory note obligation secured by a real estate mortgage. See In re Sapp, supra; In re Rippe, supra. To interpret these phrases to mean “when payment is due by reason of default” negates meaningful relief to any Chapter 13 debtor in de fault on his homestead mortgage despite the usage of stereotyped acceleration clauses by adhesion. The entry of a judgment does not alter or affect the existence of adequate protection from the mortgage collateral. In addition to the provisions of 11 U.S.C. § 1322(b)(2) and (5) it is important to observe the provisions of § 1322(b)(3), which provides “for the curing or waving of any default.” [emphasis added]. All of these sections, read in pari materia, reveal the clear scope and intent of the relief for both debtors and the protection to creditors. The well reasoned decision In re Soder-lund, supra, has been cited as primary authority by all of the Plaintiff-Mortgagees sub judice. The decision in" }, { "docid": "1363603", "title": "", "text": "1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). (3) Courts hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 BCD 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla.1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 BCD 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29 B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). Most courts agree that the debtor may use § 1322(b)(5) to cure a default where the mortgagee has not yet accelerated his debt. See e.g. In re Pearson, 10 B.R. 189, 193 (Bkrtcy.E.D.N.Y.1981); In re Hartford, 7 B.R. 914 (Bkrtcy.D.Me.1981). This court has considered the question of post default cure in two cases. In In re Stone, 27 B.R. 8 (Bkrtcy.D.Or.1982) the court held that a chapter 13 debtor could cure a default and reinstate the periodic payment provision of a land sale contract where the creditor had declared the debt accelerated prior to the chapter 13 filing. In In re Seidel/In re Girgis, 31 B.R. 262 (Bkrtcy.D.Or.1983), the court held that a debtor could not cure a default by extending the" }, { "docid": "7731491", "title": "", "text": "even after the mortgagee has obtained a judgment on the accelerated mortgage note. In re Taddeo, 685 F.2d 24 (2d Cir.1982); In re Acevedo, 26 B.R. 994 (E.D.N.Y.1982); In re Mueller, 18 B.R. 851 (Bkrtcy.W.D. Ark.1982); In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.1982); In re Hubbard, 23 B.R. 671 (Bkrtcy.S.D.Ohio 1982); In re McSorley, 24 B.R. 795 (Bkrtcy.N.J.1982); In re Tuchman, 29 B.R. 39 (Bkrtcy.S.D.N.Y.1983); In re Hardin, 16 B.R. 810 (Bkrtcy.N.D.Tex.1982); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Smith, 19 B.R. 592 (Bkrtcy.N.D.Ca.1982); In re McCann, 27 B.R. 678 (Bkrtcy.S.D.Ohio 1982). This seems to be a rapidly growing view and has been adopted by more appellate level courts than have any-of the other views. The fifth view is perhaps the most adventurous of all. It holds that deceleration and reinstitution are available even after the foreclosure sale, as long as the state redemption period has not expired by the time the debtor files his bankruptcy petition. See In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982); In re Gooden, 21 B.R. 456 (Bkrtcy.N.D.Ga.1982); In re Ivory, 32 B.R. 788, 10 B.C.D. 1327 (Bkrtcy.D.Or.1983). Id. at 939-40 (footnotes omitted). The courts are, in particular, divided on the issue before this Court: whether there can be deceleration and reinstitution of a mortgage after entry of judgment of foreclosure but before sale. Compare In re re Acevedo, 26 B.R. 994 (E.D.N.Y.1982) (reinstitution and deceleration permitted); In re McSorley, 24 B.R. 795 (Bkrtcy.D.N.J.1982) (same); and In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982) (same); with In re Clark, 32 B.R. 711 (D.C.W.D.Wis.1983) (reinstitution and deceleration not permitted); In re Mattocks, 15 B.R. 379 (Bkrtcy.E.D.N.Y.1981) (same); and In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). The debtors have not made clear whether they seek “modification” of Ninth Ward’s judgment under section 1322(b)(2) or the “curing” of their default and maintenance of mortgage payments under sections 1322(b)(3) and (b)(5). For reasons which are set out below, debtors cannot prevail under any of those subsections. The section 1322(b)(2) argument is the easiest to dismiss." }, { "docid": "13796349", "title": "", "text": "not have an unsecured claim for the deficiency. This is an important departure from a few misguided decisions under current law, under which a secured creditor with a 12000 secured by household goods worth only $200 is entitled in some cases to his full $2000 claim, in preference to all unsecured creditors. H.Rep. 595, 95th Cong., 1st Sess. at 124, U.S. Code Cong. & Admin.News, p. 6085. .Section 1322(b) provides, in pertinent part, that: (b) ... the plan may (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; ... (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; (10) include any other appropriate provision not inconsistent with this title. (Emphasis added.) . Sable, A Chapter 13 Debtor’s Right to Cure Default Under Section 1322(b): A Problem of Interpretation, 57 Am.Bankr.L.J. 127, 128 (1983); Comment, Accelerated Mortgages: An Unsolved Problem of Interpretation in Chapter 13, 19 Hous.L.Rcv. 954, 971 (1982). . Three distinct lines of authority have developed. One line of cases holds that once a debt is accelerated, the debtor’s Chapter 13 right to cure the default is extinguished. See, e.g., In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Tex.1981); In re LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981). Another line of cases has given the debtor the right to cure,pre-petition defaults. See, e.g., In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982). The third line of cases allows the debtor to cure a default on an accelerated debt unless there has been a judicial decree of foreclosure. See, e.g., In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). . However, we should note that the clause, \"on which the" }, { "docid": "8341239", "title": "", "text": "one creditor seeks a preference in payment to the detriment of the estate by a forced sale of assets. Hence, we are constrained to concur with those decisions which provide that the acceleration of the debt is merely part and parcel of the default that gave rise to the foreclosure suit in the state court. Section 1322(b)(5) is intended to permit a debtor to cure any default, including a precipitated acceleration therefrom. It does not seem logical to conclude that the consequence of curing a default does not effect a reinstatement of the mortgage contract and the debt, since the mortgage is only security for the debt. See In re Acevedo, 9 B.R. 852, 4 C.B.C.2d 178, B.L.D. ¶ 67967 (Bkrtcy.E.D.N.Y.1981); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981); In re Taddeo, 9 B.R. 299, 7 B.C.D. 422, 4 C.B.C.2d 185, BLD ¶ 68093 (Bkrtcy.E.D.N.Y.1981); and In re Davis, 16 B.R. 473 (D.Kan.1981). A reputable treatise on bankruptcy law draws a similar conclusion. See 5 Collier on Bankruptcy § 1322.01(3), (E) (15th Ed. 1981) which concludes, as follows: “The debtor may maintain the contract payments during the course of the Plan without acceleration by virtue of any pre-Petition default, by proposing to cure the default within a reasonable time. The debtor may avail himself of the provisions of § 1322(b)(5) even though the long term debt is secured only by a security interest in real property which is the principle residence of the debtor.” [emphasis added]. Other decisions interpreting § 1322(b)(5) implicitly support the same conclusion but do not reach the same result, on the rationale that the foreclosure proceedings had progressed to the point of being in judgment, treating the judgment rather than the debt secured by a mortgage itself as the basis for the creditors claim. It was concluded in those cases that the last payment on the obligation would be due after the final payment under the Plan is due. See In re Robertson, 4 B.R. 213, 6 B.C.D. 375, 2 C.B.C.2d 136 (Bkrtcy.D.Colo.1980); In re Canady, 9 B.R. 428," }, { "docid": "2129052", "title": "", "text": "to accelerate, regardless of whether or not the mortgagee has obtained a judgment. See In re Soderlund (Dist.Ct.), supra; Matter of Allen, 17 B.R. 119 (Bkrtcy.N.D.Ohio 1981); In re La Paglia, 8 B.R. 937 (Bkrtey.E.D.N.Y.1981). Another, more sizeable group of cases have held that while deceleration is possible prior to judgment, it is no longer available once the mortgagee has obtained a judgment on the mortgage note. See In re Anderson, supra; In re White, 22 B.R. 542 (Bkrtcy.D.Del.1982); In re Mattocks, 15 B.R. 379 (Bkrtey.E.D.N.Y.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Jenkins, 14 B.R. 748 (Bkrtcy.N.D.Ill.1981); In re Land, 14 B.R. 132 (Bkrtcy.N.D.Ohio 1981); Matter of Wilson, 11 B.R. 986 (Bkrtey.S.D.N.Y.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981); In re Canady, 9 B.R. 428 (Bkrtcy.D.Conn.1981); In re Britton, 35 B.R. 373 (N.D.Ind.1982). While this is a more widely held view than the per se prohibition espoused by the first group, it is still the minority view and has had only one recent convert. In re Clark, C.C.H. Bankr. Serv. ¶ 69,341, 32 B.R. 711 (W.D.Wis.1983). The third approach likewise allows deceleration and reinstitution, but does not speak to what impact, if any, a judgment would have on the availability of this option. See In re Morrison, supra; In re Briggs, 25 B.R. 317 (Dist.Ct.N.N.D.1982); In re Davis, 16 B.R. 473 (D.Kan.1981); In re Cheeks, 24 B.R. 477 (Bkrtcy.M.D.Ala.1982); Matter of Wilder, 22 B.R. 294 (Bkrtcy.M.D.Ga.1982); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981); First Investment Co. v. Custer, 18 B.R. 842 (Bkrtcy.S.D. Ohio 1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981); In re Beckman, 9 B.R. 193 (Bkrtcy.N.D.Iowa 1981). This view is supported by several District Courts and would seem to be the overwhelming majority view. The fourth view holds that deceleration and reinstitution are possible even after the mortgagee has obtained a judgment on the accelerated mortgage note. In re Taddeo, 685 F.2d 24 (2d Cir.1982); In re Acevedo, 26 B.R. 994 (Dist.Ct.E.D.N.Y.1982); In re Mueller, 18 B.R. 851 (Bkrtcy.W.D.Ark.1982); In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill. 1982); In re Hubbard, 23 B.R. 671 (Bkrtcy." }, { "docid": "18560341", "title": "", "text": "by Borrower, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. According to the terms of the parties’ agreement, to cure and reinstate, the debtors must also pay Deseret Federal’s reasonable attorneys’ fees. Section 1322 (b)(5) allows debtors to cure their failure to perform obligations on long term debt. In re Fontaine, 27 B.R. 614, 10 B.C.D. 204, 8 C.B.C.2d 1293 (Bkrtcy.App.Pan. 9th Cir.1982). However, the case law has not been in agreement as to the limits of debtors’ power to cure a default. Some courts have held that where a mortgage by its terms permits the creditor to accelerate the debt before filing, Section 1322(b)(5) does not apply. This view is predicated upon the principal that since acceleration caused the obligation to become immediately due, the maturity date of the last payment does not extend past the date for the last payment under the plan. Therefore, the entire amount must be paid under the plan. To hold otherwise, would modify the mortgagee’s rights in violation of subsection (b)(2). See, e.g., In re Williams, 11 B.R. 504, 7 B.C.D. 946, 4 B.C.D.2d 1028, (Bkrtcy.S.D.Tex.1981); In re LaPaglia, 8 B.R. 937, 7 B.C.D. 333, 3 C.B.C.2d 717, (Bkrtcy.E.D.N.Y.1981). But the majority of cases have held that the power to “cure” contained in Section 1322(b)(5) includes the power to decelerate the accelerated mortgage debt and reinstate the original mortgage payment schedule. See, e.g., In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Acevedo, 26 B.R. 994, 4 C.B.C.2d 178 (Bkrtcy.E.D.N.Y.1982); In re Briggs, 25 B.R. 317 (Bkrtcy.D.N.D.1982); In re Davis, 16 B.R. 473, 5 C.B.C.2d 606 (Bkrtcy.D.Kan.1981). In almost every Chapter 13 ease filed by a homeowner debtor, the mortgage debt has been accelerated. By prohibiting a debtor from curing defaults on accelerated loans, the congressional intent and rehabilitative purpose behind Chapter 13 would be defeated. The curing of defaults under this section is not considered a modification of the mortgage lienholder’s rights. In re Taddeo, 685 F.2d at 27. This Court adopts the majority position and allows" }, { "docid": "21693691", "title": "", "text": "security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; The mortgagees do not dispute that subsection (b)(5) permits a Chapter 13 debtor to cure a default on a long-term mortgage on the debtor’s principal residence. However, they contend that once the long-term debt has been accelerated, or a foreclosure judgment has been obtained, or a foreclosure sale has occurred, the claim is no longer one “on which the last payment is due after the date on which the final payment under the plan is due” and, therefore, is not subject to cure under subsection (b)(5). Moreover, they argue that allowing the debtor to cure the default and reinstate the terms of the mortgage after any of these events would violate the language of subsection (b)(2), which prohibits modification of the rights of holders of claims “secured only by a security interest in real property that is the debtor’s principal residence.” The courts disagree over whether and under what circumstances section 1322(b) allows a cure once a default on a mortgage has triggered acceleration of the debt, a judgment or a sale. The bankruptcy court in In re Ivory, 32 B.R. 788 (Bankr.D.Or. 1983), grouped the differing viewpoints into the following general categories: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y. 1981); In re Allen, 17 B.R. 119, 8 B.C.D. 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance" }, { "docid": "21693692", "title": "", "text": "cure the default and reinstate the terms of the mortgage after any of these events would violate the language of subsection (b)(2), which prohibits modification of the rights of holders of claims “secured only by a security interest in real property that is the debtor’s principal residence.” The courts disagree over whether and under what circumstances section 1322(b) allows a cure once a default on a mortgage has triggered acceleration of the debt, a judgment or a sale. The bankruptcy court in In re Ivory, 32 B.R. 788 (Bankr.D.Or. 1983), grouped the differing viewpoints into the following general categories: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y. 1981); In re Allen, 17 B.R. 119, 8 B.C.D. 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y. 1981). (3) Courts [that] hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 B.C.D. 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla. 1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtey.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 B.C.D. 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29" }, { "docid": "7731492", "title": "", "text": "re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982); In re Gooden, 21 B.R. 456 (Bkrtcy.N.D.Ga.1982); In re Ivory, 32 B.R. 788, 10 B.C.D. 1327 (Bkrtcy.D.Or.1983). Id. at 939-40 (footnotes omitted). The courts are, in particular, divided on the issue before this Court: whether there can be deceleration and reinstitution of a mortgage after entry of judgment of foreclosure but before sale. Compare In re re Acevedo, 26 B.R. 994 (E.D.N.Y.1982) (reinstitution and deceleration permitted); In re McSorley, 24 B.R. 795 (Bkrtcy.D.N.J.1982) (same); and In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982) (same); with In re Clark, 32 B.R. 711 (D.C.W.D.Wis.1983) (reinstitution and deceleration not permitted); In re Mattocks, 15 B.R. 379 (Bkrtcy.E.D.N.Y.1981) (same); and In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). The debtors have not made clear whether they seek “modification” of Ninth Ward’s judgment under section 1322(b)(2) or the “curing” of their default and maintenance of mortgage payments under sections 1322(b)(3) and (b)(5). For reasons which are set out below, debtors cannot prevail under any of those subsections. The section 1322(b)(2) argument is the easiest to dismiss. Section 1322(b)(2), unlike sections 1322(b)(3) and (b)(5), does not allow for the curing of a default. Section 1322(b)(2) does permit modification of secured claims, but any plan of modification must, under section 1322(c), provide for payments over a period of no longer than five years. Debtors’ proposed plan does not contemplate repayment of the entire judgment within the period of the plan but, instead, contemplates payment only of mortgage arrearages. Debtors’ plan is thus dependent upon a cure of their default and reinstatement of their mortgage, remedies not available under the terms of section 1322(b)(2). Sections 1322(b)(3) and (b)(5) have been the main focus of most courts in resolving cases involving Chapter 13 debtors. The leading case permitting cure and reinstatement is In re Taddeo, 685 F.2d 24 (2d Cir.1982). The Taddeo court held that the limitation against “modification” of mortgage liens under section 1322(b)(2) did not restrict a debtor’s right to “cure” a mortgage default under section 1322(b)(3) and (b)(5). Id. at 27-28. The Taddeo court explained: When Congress empowered Chapter 13 debtors to" }, { "docid": "1363601", "title": "", "text": "permitted where, as here, a mortgage default has triggered a foreclosure judgment and sale of the property prior to the filing of a chapter 13 petition. The DVA further contends that it is entitled to the insurance proceeds under the terms of the insurance agreement. The issues before the court are as follows: (1) whether a chapter 13 debtor can cure a default on a residential mortgage after a final decree of foreclosure has been entered and a sale has been made; (2) if a post sale cure is permissible, whether it can be effected by paying the arrearages which triggered the default and the mortgage debt in full within the life of the plan; and (3)who is entitled to the insurance proceeds, the DVA or the debtors and the debtors’ attorney. 11 U.S.C. § 1322(b) provides that a chapter 13 plan may: “(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; (10) include any other appropriate provision not inconsistent with this title.” The case law under 11 U.S.C. § 1322(b) indicates that the courts are not in agreement over whether and under what circumstances a cure can be allowed once a default on a mortgage debt has triggered acceleration of the debt, a judgment or a sale. The differences in viewpoint may be generally categorized as follows: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981); In re Allen, 17 B.R. 119, 8 BCD 945 (Bkrtcy.N.D.Ohio" }, { "docid": "23156512", "title": "", "text": "13 to cure the default (§ 1322(b)(5)). In re Johnson, 6 B.R. 34, 6 B.C.D. 579 (Bkrtcy.N.D.Ill.1980); In re Hartford, 7 B.R. 914, 7 B.C.D. 145 (Bkrtcy. D.Maine 1981). There is uncertainty, however, on the correct result in the case where, as in this case, a judgment of foreclosure and sale has been entered, but the property has not yet been sold. Outside the Eastern District of New York, two courts have held after a judgment of foreclosure, or its equivalent, the secured creditor is entitled to payment of the full amount of the mortgaged debt, not simply arrearages. In re Coleman, 5 B.R. 812 (W.D.Ky.1980); In re Robertson, 4 B.R. 213 (Bkrtcy.D.Colo.1980). Other courts have indicated that satisfaction of the amount in default may be sufficient. United Companies Financial Corp. v. Brantley, 6 B.R. 179, 6 B.C.D. 932 (Bkrtcy.Fla.1980); In re Breuer, 4 B.R. 499, 1 C.B.C.2d 712 (Bkrtcy.S.D.N.Y.1980). In this District, one bankruptcy judge has concluded that acceleration of the entire mortgage debt by the creditor will by itself cut off the “right to cure a mortgage default under a Chapter 13 repayment plan as provided in Section 1322(b)(5) of the Code, 11 U.S.C. § 1322(b)(5).” In re LaPaglia, 8 B.R. 937 (B.C.E.D.N.Y.1981). This conclusion is based on the specific language of § 1322(b)(5), which describes the type of indebtedness covered as a claim on which “the last payment is due after the date on which the final payment under the plan is due.” Applying New York State law, Judge Price concluded that when a debt is accelerated, the debt is changed from “one payable at some time in the future and in installments, to one immediately payable in full.” However, another bankruptcy judge in this District would permit cure even after acceleration up to the time of actual sale pursuant to a judgment of foreclosure. In re Taddeo, 9 B.R. 299 (B.C.E.D.N.Y.1981). Judge Párente noted that the provisions of Chapter 13 should be read in pari materia with the provisions of Chapter 11, and that since “Chapter 11 extends the right of post acceleration cure to the" }, { "docid": "10241005", "title": "", "text": "in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; ... (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; ... The bankruptcy courts throughout the country are in substantial disagreement over the interpretation to be given this statute. As noted in In re Pearson, 10 B.R. 189, 7 B.C.D. 567 (Bkrtcy.E.D.N.Y.1981), there appears to be unanimity that the right to cure exists until there has been an acceleration of the indebtedness and that it ceases once the property has been sold at foreclosure. Beyond that the cases may be divided into three general groups; (1) those which deny the right to cure an acceleration. See In re La Paglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981) (contractual acceleration); In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981) (judgment); In re Williams, supra (contractual acceleration); In re Coleman, 5 B.R. 812 (U.S.D.Ct.Ky.1980) (judgment); (2) those which grant the right to cure an acceleration. See In re Taddeo, 9 B.R. 299 (Bkrtcy.E.D.N.Y.1981) aff’d. 15 B.R. 273 (U.S.D.Ct.E.D.N.Y.1981) (judgment); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981) (contractual acceleration); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981) (contractual acceleration); In re Acevedo, 9 B.R. 852 (Bkrtcy.E.D.N.Y.1981) (judgment); In re Beckman, 9 B.R. 193, 7 B.C.D. 361 (Bkrtcy.N.D.Iowa 1981) (contractual acceleration); United Companies Financial Corp. v. Brantley, 6 B.R. 178, 6 B.C.D. 932 (Bkrtcy.N.D.Fla.1980) (judgment); In re Soderlund, 7 B.R. 44 (Bkrtcy.S.D.Ohio 1980) (contractual acceleration); In re Breuer, 4 B.R. 499 (Bkrtcy.S.D.N.Y.1980) (judgment); and (3) a third more limited group which deny the right to cure where a judicial decree has resulted in acceleration but do not reach the question of whether the debt- or may cure defaults in contractual accelerations. In re Pearson, supra; In re Canady, 9 B.R. 428, 7 B.C.D. 749 (Bkrtcy.D.Conn.1981); In re Jenkins, 14" }, { "docid": "1363602", "title": "", "text": "unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; (10) include any other appropriate provision not inconsistent with this title.” The case law under 11 U.S.C. § 1322(b) indicates that the courts are not in agreement over whether and under what circumstances a cure can be allowed once a default on a mortgage debt has triggered acceleration of the debt, a judgment or a sale. The differences in viewpoint may be generally categorized as follows: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981); In re Allen, 17 B.R. 119, 8 BCD 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). (3) Courts hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 BCD 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla.1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 BCD 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a" }, { "docid": "21693693", "title": "", "text": "Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y. 1981). (3) Courts [that] hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 B.C.D. 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla. 1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtey.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 B.C.D. 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29 B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo. 1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). 32 B.R. at 790. To the fourth group we add the following recent opinions by the Fifth and Seventh Circuits: Grubbs v. Houston First American Savings Association, 730 F.2d 236 (5th Cir.1984) (en banc) (holding that a debtor may cure a default after acceleration, but expressing no limit on the right); Matter of Clark, 738 F.2d 869 (7th Cir.1984) (holding that a debtor may cure a default after a judgment of foreclosure that does no more than judicially confirm the acceleration Under state law, but expressing no opinion whether the right to cure survives a sale or a judgment of foreclosure in states where the effect of the judgment is different). Most courts agree that section 1322(b)(5) allows the debtor to cure a default when the mortgagee has not yet accelerated the debt, see, e.g., In re Pearson, 10 B.R. at 193; In re Hartford, 7 B.R. 914 (Bankr.D. Me." }, { "docid": "13796350", "title": "", "text": "plan is due; (10) include any other appropriate provision not inconsistent with this title. (Emphasis added.) . Sable, A Chapter 13 Debtor’s Right to Cure Default Under Section 1322(b): A Problem of Interpretation, 57 Am.Bankr.L.J. 127, 128 (1983); Comment, Accelerated Mortgages: An Unsolved Problem of Interpretation in Chapter 13, 19 Hous.L.Rcv. 954, 971 (1982). . Three distinct lines of authority have developed. One line of cases holds that once a debt is accelerated, the debtor’s Chapter 13 right to cure the default is extinguished. See, e.g., In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Tex.1981); In re LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981). Another line of cases has given the debtor the right to cure,pre-petition defaults. See, e.g., In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982). The third line of cases allows the debtor to cure a default on an accelerated debt unless there has been a judicial decree of foreclosure. See, e.g., In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). . However, we should note that the clause, \"on which the Inst payment is due,” can be interpreted, as a matter of preempting federal bankruptcy law, to mean \"on which the last payment before acceleration is due.” See In re Brener, 4 B.R. 499, 501 (Bkrtcy.S.D.N.Y.1980), so holding and permitting reinstatement of a long-term mortgage by the payment under the plan of the arrears, notwithstanding a pre-petition acceleration and foreclosure judgment. See also III in text below (legislative history). . In doing so, the panel found itself in substantial agreement with In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Tex.1981), in which the bankruptcy court reasoned as follows: Although § 1322(b)(3) slates that any default may be cured or waived, it appears to the court that (b)(3) was not intended to apply where (b)(5) (which also provides that any default may be cured) is applicable. Congress provided in (b)(2) that the rights of holders of claims secured by the debtors' principal resi-donee may not be modified by a plan. Congress further provided an exception to (b)(2) in (b)(5): a default may be cured within a reasonable time if" }, { "docid": "10241006", "title": "", "text": "acceleration); In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981) (judgment); In re Williams, supra (contractual acceleration); In re Coleman, 5 B.R. 812 (U.S.D.Ct.Ky.1980) (judgment); (2) those which grant the right to cure an acceleration. See In re Taddeo, 9 B.R. 299 (Bkrtcy.E.D.N.Y.1981) aff’d. 15 B.R. 273 (U.S.D.Ct.E.D.N.Y.1981) (judgment); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981) (contractual acceleration); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981) (contractual acceleration); In re Acevedo, 9 B.R. 852 (Bkrtcy.E.D.N.Y.1981) (judgment); In re Beckman, 9 B.R. 193, 7 B.C.D. 361 (Bkrtcy.N.D.Iowa 1981) (contractual acceleration); United Companies Financial Corp. v. Brantley, 6 B.R. 178, 6 B.C.D. 932 (Bkrtcy.N.D.Fla.1980) (judgment); In re Soderlund, 7 B.R. 44 (Bkrtcy.S.D.Ohio 1980) (contractual acceleration); In re Breuer, 4 B.R. 499 (Bkrtcy.S.D.N.Y.1980) (judgment); and (3) a third more limited group which deny the right to cure where a judicial decree has resulted in acceleration but do not reach the question of whether the debt- or may cure defaults in contractual accelerations. In re Pearson, supra; In re Canady, 9 B.R. 428, 7 B.C.D. 749 (Bkrtcy.D.Conn.1981); In re Jenkins, 14 B.R. 748 (Bkrtcy.N.D.Ill.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). The question presented is one of statutory interpretation. Interestingly, the leading cases of the three different views come from three different Bankruptcy Judges all in the Eastern District of New York. The courts in group one have focused on the language of subsection (b)(5) and interpreted it to limit the right to cure to instances where the last payment due on the underlying debt is due after the final payment under the plan is due. They reason that acceleration of the debt has created a lump sum claim due immediately under state law and therefore it is not eligible for treatment under (b)(5). Those courts in group two arrive at their conclusions allowing de-acceleration through various reasoning. One leading case looks at the entire statutory scheme of Chapter 13 to arrive at the conclusion that Congress enacted liberal Chapter 13 provisions to encourage debtors to propose repayment plans and retain assets they might forfeit under a Chapter 7 proceeding. If the Chapter 13 debtor cannot" }, { "docid": "18560342", "title": "", "text": "mortgagee’s rights in violation of subsection (b)(2). See, e.g., In re Williams, 11 B.R. 504, 7 B.C.D. 946, 4 B.C.D.2d 1028, (Bkrtcy.S.D.Tex.1981); In re LaPaglia, 8 B.R. 937, 7 B.C.D. 333, 3 C.B.C.2d 717, (Bkrtcy.E.D.N.Y.1981). But the majority of cases have held that the power to “cure” contained in Section 1322(b)(5) includes the power to decelerate the accelerated mortgage debt and reinstate the original mortgage payment schedule. See, e.g., In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Acevedo, 26 B.R. 994, 4 C.B.C.2d 178 (Bkrtcy.E.D.N.Y.1982); In re Briggs, 25 B.R. 317 (Bkrtcy.D.N.D.1982); In re Davis, 16 B.R. 473, 5 C.B.C.2d 606 (Bkrtcy.D.Kan.1981). In almost every Chapter 13 ease filed by a homeowner debtor, the mortgage debt has been accelerated. By prohibiting a debtor from curing defaults on accelerated loans, the congressional intent and rehabilitative purpose behind Chapter 13 would be defeated. The curing of defaults under this section is not considered a modification of the mortgage lienholder’s rights. In re Taddeo, 685 F.2d at 27. This Court adopts the majority position and allows the debtors in the present case to cure the default through their Chapter 13 plan, decelerate Deseret Federal’s accelerated second lien, and reinstate the original payment terms. CONCLUSION Section 1322(b)(2) allows the curing of defaults to place parties in the position they would have been in if the defaults had not occurred. Upon the cure, no damages arising out of the breach of the lien agreement can exist. The terms of the parties’ lien agreement provided that the debtors must pay all attorneys’ fees in order to cure and reinstate the agreement. Section 1322(b)(2) requires that the rights of mortgage lienholders be preserved. Therefore, this Court is of the opinion that in order to place the parties in their pre-default condition and to preserve the terms of the parties’ lien agreement, the arrearage claim of Deseret Federal must include its claim for attorneys’ fees and be treated through the debtors’ Chapter 13 plan. Although the foregoing decision renders the debtor’s Chapter 13 plan as previously confirmed unfeasible, the requirements of Section 506(b) and Section 1322(b)(2)" }, { "docid": "8341240", "title": "", "text": "§ 1322.01(3), (E) (15th Ed. 1981) which concludes, as follows: “The debtor may maintain the contract payments during the course of the Plan without acceleration by virtue of any pre-Petition default, by proposing to cure the default within a reasonable time. The debtor may avail himself of the provisions of § 1322(b)(5) even though the long term debt is secured only by a security interest in real property which is the principle residence of the debtor.” [emphasis added]. Other decisions interpreting § 1322(b)(5) implicitly support the same conclusion but do not reach the same result, on the rationale that the foreclosure proceedings had progressed to the point of being in judgment, treating the judgment rather than the debt secured by a mortgage itself as the basis for the creditors claim. It was concluded in those cases that the last payment on the obligation would be due after the final payment under the Plan is due. See In re Robertson, 4 B.R. 213, 6 B.C.D. 375, 2 C.B.C.2d 136 (Bkrtcy.D.Colo.1980); In re Canady, 9 B.R. 428, 7 B.C.D. 749, BLD ¶ 67906, 4 C.B.C.2d 113 (Bkrtcy.Conn.1981); In re Land, 14 B.R. 132, 8 B.C.D. 90, 5 C.B.C.2d 145 (Bkrtcy.N.D.Ohio 1981); In re Pearson, 10 B.R. 189, 7 B.C.D. 567, BLD ¶ 67942, 4 C.B.D.2d 57 (Bkrtcy.E.D.N.Y.1981); In re Jenkins, 14 B.R. 748, 8 B.C.D. 292, 3 BLD. ¶ 68394 (Bkrtcy.N.D.Ill.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). These decisions leave the clear impression that if the mortgage obligations had not been reduced to judgment before the Chapter 13 case filings that those courts would have permitted curing of the mortgage default despite the fact that the mortgage obligation had been accelerated by adhesion clauses therein. A reading of §§ 1322(b)(5) and 1328(a)(1) of the Bankruptcy Code indicates that the intent of the Congress from the phrase “curing of any default,” as used in § 1322(b)(5), means placing the parties in the position they would have been if no default had occurred. The term “the last payment” cannot refer to the time when payment is due after acceleration, because acceleration is merely" } ]

[ { "docid": "1532561", "title": "", "text": "Smith is not capable of performing a full range of such work. The issue here is whether the evidence supports putting Smith on the “grid” as having the residual functional capacity required for Table No. 1 to apply. II. As previously noted by this court, the determination of a disability under SSA’s regulations involves a sequential evaluation. See Garfield v. Schweiker, 732 F.2d 605 at 607 n. 2 (7th Cir.1984); Wallschlaeger v. Schweiker, 705 F.2d 191, 196 (7th Cir.1983); Cannon v. Harris, 651 F.2d 513, 517 (7th Cir.1981). The AU found that Smith cleared all the initial hurdles including proof that a severe impairment had left him unable to perform past work. The burden then shifted to the agency to show the claimant retained the residual functional capacity to perform other work existing in the national economy. Wallace v. Secretary of Health and Human Services, 722 F.2d 1150, 1153 (3rd Cir.1983); Streissel v. Schweiker, 717 F.2d 1231, 1232 (8th Cir.1983); Van Horn v. Heckler, 717 F.2d 1196, 1198 (8th Cir.1983). Since 1978 the Secretary has sought to meet this burden by relying in part on its Medical-Vocational Guidelines. See 20 C.F.R. pt. 404, subpt. P, app. 2 (1983). The Appendix 2 Guidelines indicate in grid form whether a significant number of jobs exist in the national economy for individuals with various impairments of physical capacity, ages, education, and work experience. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 1954-55, 76 L.Ed.2d 66 (1983). Where an individual’s characteristics correspond to factors on the grid, the Guidelines direct a finding of disabled or not disabled. The Guideline rules do not encompass the characteristics of every conceivable claimant but rather describe what the agency has determined to be major vocational and functional patterns. See 20 C.F.R. § 404.-1569 (1983). The Guidelines only apply when the claimant’s vocational factors and residual functional capacity correspond with the criteria of a specific rule. Id.; Appendix 2, § 200.00(d). See Campbell, 461 U.S. 458 at - n. 5, 103 S.Ct. at 1955 n. 5 (“the rules will be applied only when they describe a claimant’s" } ]

[ { "docid": "7450554", "title": "", "text": "of congestive heart failure. Dr. Brasch did note an early degree of hypertensive retinopathy (defined as any type of noninflammatory disease of the retina). Musculosketal and neurological examinations were normal. .Use of the grid is not appropriate where a claimant’s non-exertional impairments preclude the claimant from performing the full range of work in any given exertional level. However, an ALJ is \"permitted to conclude that a non-ex-ertional limitation, while present, has no significant impact on a claimant's capacity to perform the range of work the individual is otherwise exertionally capable of performing_” Caldarulo v. Bowen, 857 F.2d 410, 413 (7th Cir.1988) (quoting Smith v. Scweiker, 735 F.2d 267, 272 n. 3 (7th Cir.1984)). Because the AU relied upon the opinions of Dr. Bernet and Dr. Kim to conclude that Pugh should only avoid \"excessive” amounts of respiratory irritants, rather than most work environments, the grid could be utilized to determine whether he was disabled. See, e.g., id.; Warmoth v. Bowen, 798 F.2d 1109, 1111-12 (7th Cir.1986) (discussing SSR 85-7); see also SSR 85-15. . When one employs this same reasoning with regard to Pugh’s allegation that he became totally disabled upon the day he left his job at the Nalco Chemical Company, one might characterize Pugh’s contention similarly. . Such a conclusion is not unsupported by the record in this case. Dr. Kim’s opinions that Pugh could perform light, if not medium, work in the national economy came at a time when Pugh’s impairments almost equalled the Listings. We do not believe that Dr. Kim’s conclusions reflect an unqualified expert as Pugh asserts, especially when Dr. Bernet and Jeff Ed-monds apparently supported Dr. Kim’s assessment of the evidence. . In cases where it is not possible to infer the onset date based upon the medical evidence, or to determine how long the disease has existed at a disabling level of severity prior to the date of the first recorded medical examination, the AU \"should call on the services of a medical advisor when onset must be inferred.\" Because the AU had a relatively complete medical chronology of Pugh’s medical condition" }, { "docid": "22104144", "title": "", "text": "458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983); Cummins v. Schweiker, 670 F.2d 81, 83-84 (7th Cir.1982). However, as Mr. Walker correctly argues, use of the grid may be inappropriate if the claimant suffers from severe non-exertional impairments, including pain, which prevent the claimant from performing the work indicated by the grid. Plaintiffs Br. at 22-26 (citing Campbell, 461 U.S. 458, 103 S.Ct. 1952; Cummins, 670 F.2d 81; Cannon v. Harris, 651 F.2d 513 (7th Cir.1981)). Thus, if non-exertional impairments are severe enough, use of the grid is not appropriate and we will reverse a determination of non-disability based on the grid. Smith, 735 F.2d at 270-72. Mr. Walker correctly portrays the nature of the proposition set forth in Smith, 735 F.2d at 271. Apparently, though, he misperceives its scope. First, the determination whether use of the grid is appropriate is itself a question of fact. Thus, the AU’s use of the grid will be upheld as long as substantial evidence supports its use. Id. at 270. Second, “[t]he fact that a claimant suffers from a non-exertional impairment does not ... immediately preclude utilization of the grid.” Nelson v. Secretary of Health & Human Servs., 770 F.2d 682, 684-85 (7th Cir.1985). Instead, the AU must determine whether the claimant’s non-exertional impairments are severe enough to limit the abilities of the claimant substantially. To uphold the AU’s finding that the grids may be used in a given case, we require only “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.” Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir.1986); see also Shidler v. Bowen, 651 F.Supp. 1291, 1298 (N.D.Ind.1987); Johnson v. Bowen, 648 F.Supp. 443, 448-49 (N.D.Ill. 1986). Mr. Walker nevertheless contends that the AU’s findings are not supported by substantial evidence because the AU failed to give appropriate weight to much of Mr. Walker’s evidence of disability. First, Mr. Walker asserts that the Secretary improperly failed to credit his testimony regarding pain. Mr. Walker alleges that the AU applied the wrong" }, { "docid": "3871597", "title": "", "text": "concluded that the Secretary’s findings were supported by substantial evidence in the record and affirmed the denial of benefits. II. Under the sequential evaluation procedures, once a claimant reaches step five by demonstrating that a severe impairment has left him unable to perform past work, Smith v. Schweiker, 735 F.2d 267, 270 (7th Cir.1984), the Secretary must then show that the claimant retained the residual functional capacity to perform other work existing in the national economy. Id. The Secretary may carry this burden through the use of its Medical-Vocational Guidelines, see 20 C.F.R. pt. 404, subpt. P, app. 2 (1983), which set out a grid of jobs in the national economy suitable for individuals of various physical capacity, age, education, and work experience. Id. Where a claimant’s characteristics correspond to factors on the grid, the Guidelines determine disability based on the availability of suitable jobs for the claimant in the national economy. Id. The grid, however, is applicable only where it describes a claimant’s abilities and limitations accurately. Heckler v. Campbell, 461 U.S. 458, 462 n. 5, 103 S.Ct. 1952, 1955 n. 5, 76 L.Ed.2d 66 (1983). The question for this court is whether substantial evidence in the record as a whole supports application of the guidelines to Caldarulo’s claim. See Strunk v. Heckler, 732 F.2d 1357, 1359 (7th Cir.1984). In denying Caldarulo benefits, the Secretary relied on Rules 202.17 and 202.-18, which direct a finding of “not disabled” for a “younger individual,” unskilled, with a limited education. While it is undisputed that Caldarulo satisfies the age, skill, and education requirements of the Rules, he contests the conclusion that he retained the residual functional capacity to perform the full range of light work contemplated by the grid. “Light work,” as defined by the Guidelines, involves lifting no more than 20 pounds at a time with frequent lifting or carrying objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with" }, { "docid": "10569206", "title": "", "text": "omitted). Under the Social Security Act, a plaintiff must be disabled in order to be eligible for benefits. Disability means an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). An individual is under a disability “only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy ... in significant numbers either in the region where such individual lives or in several regions in the country.” Id. § 423(d)(2)(A). Once it is determined the claimant cannot perform his or her prior work, the burden shifts to the Secretary to show the claimant can engage in some other type of substantial gainful employment. Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir.1986). When a claimant for disability benefits cannot be found disabled based upon medical considerations alone, the Social Security Administration has established the Medical-Vocational Guidelines in order to assess a claimant’s ability to engage in substantial gainful activity. See 20 C.F.R. Part 404, Subpart P, App. 2. These Guidelines, however, are only to be applied when they accurately describe a claimant’s abilities and limitations. Heckler v. Campbell, 461 U.S. 458, 462 n. 5, 103 S.Ct. 1952, 1955 n. 5, 76 L.Ed.2d 66 (1983). If a claimant’s non-exertional limitations restrict the full range of employment opportunities at the level of work that he or she is capable of performing, use of the Guidelines is precluded. Warmoth v. Bowen, 798 F.2d 1109, 1110 (7th Cir.1986) (per curiam). When the Guidelines cannot be used to assess whether the claimant is capable of doing substantial gainful activity, other reasonable evidence must be relied upon in order to prove the claimant’s employment opportunities are not significantly diminished. Id. at" }, { "docid": "2349337", "title": "", "text": "to discuss that as well. 2. Determinations Involving Nonexertional Impairments Kuwahara’s psychological problems beginning in October 1978 are a nonexertional impairment (see Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536-37 (6th Cir.1981)). Given such an impairment, Secretary’s regulations say the medical vocational guidelines do not by themselves direct a factual conclusion on disability (Reg.Subpart P, Appendix 2, § 200.00(e)). As Heckler v. Campbell, 461 U.S. 458, 462 n. 5, 103 S.Ct. 1952, 1955 n. 5, 76 L.Ed.2d 66 (1983) put it: Thus, the regulations provide that the rules will be applied only when they describe a claimant’s abilities and limitations accurately. When a nonexertional impairment prevents a claimant from performing the full range of work of which he or she is physically capable, Secretary must look to occupational reference materials or the services of a vocational expert (Warmoth, 798 F.2d at 1110). Here Secretary found Kuwahara retained the RFC to do unskilled work without an exertional impairment (R. 295). Secretary also found Kuwahara would not be able to handle work in highly stressful situations (id.). Although a vocational expert attended the Hearing, the transcript contains no record of any testimony, and the AU made no reference to any other evidence submitted, by that expert. Under Section 423(d)(2)(A) the testimony of the expert or some other occupational evidence was necessary to show Kuwahara, despite her impairment, remained capable of work that existed in significant numbers in the economy. This is not a case where Secretary can rely solely on the Grid despite a nonexer-tional impairment. Secretary made no finding that Kuwahara’s impairment did not restrict a full range of gainful employment at her level of exertional capacity (see Nelson v. Secretary of Health and Human Services, 770 F.2d 682, 685 (7th Cir.1985) (per curiam)). Nor can this be labeled as a case where the nonexertional impairment obviously has little effect on the range of work the claimant can perform (Warmoth, 798 F.2d at 1112; cf. McLamore v. Weinberger, 538 F.2d 572, 575 (4th Cir.1976) (pre-Grid case in which the existence of significant jobs that the claimant could" }, { "docid": "6257084", "title": "", "text": "that after March 7, 1985, the plaintiff could perform the full range of sedentary work, including all ex-ertional requirements of work except lifting or carrying more than 20 pounds and walking or standing for extended periods of time. Having found no nonexertional limitations, the AU applied the Grid and found the plaintiff not disabled. 20 C.F.R. Section 416.967 provides: Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. In this case the decision made use of “the Grid”, a chart that classifies the. claimant as disabled or not disabled, on the basis of residual functional capacity, age, education, and work experience. See, Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.1987); Appendix 2, Subpart P, Part 404, Chapter III, 20 C.F.R. §§ 200.00-204.00 (1987). In appropriate cases the Grid alone will constitute substantial evidence sufficient to affirm the Secretary. Walker at 640, citing Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Use of the Grid may be inappropriate, however, where a claimant suffers from severe non-exertional impairments, including pain. Walker at 640, citing Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Even where use of the Grid is inappropriate, it may be used as a “framework”, along with other evidence such as the input of a vocational expert, to determine the effect of a non-exertional impairment on the job base. Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir.1986). See also, 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2)(1985). The ultimate test is whether the record contains “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.” Warmoth at 1112, citing Nelson v. Secretary of Health and" }, { "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": "10569207", "title": "", "text": "substantial gainful employment. Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir.1986). When a claimant for disability benefits cannot be found disabled based upon medical considerations alone, the Social Security Administration has established the Medical-Vocational Guidelines in order to assess a claimant’s ability to engage in substantial gainful activity. See 20 C.F.R. Part 404, Subpart P, App. 2. These Guidelines, however, are only to be applied when they accurately describe a claimant’s abilities and limitations. Heckler v. Campbell, 461 U.S. 458, 462 n. 5, 103 S.Ct. 1952, 1955 n. 5, 76 L.Ed.2d 66 (1983). If a claimant’s non-exertional limitations restrict the full range of employment opportunities at the level of work that he or she is capable of performing, use of the Guidelines is precluded. Warmoth v. Bowen, 798 F.2d 1109, 1110 (7th Cir.1986) (per curiam). When the Guidelines cannot be used to assess whether the claimant is capable of doing substantial gainful activity, other reasonable evidence must be relied upon in order to prove the claimant’s employment opportunities are not significantly diminished. Id. at 1112. A vocational expert may be used by the Secretary in order to assess whether there are a significant number of jobs in the national economy that the claimant can do. Id.; 20 C.F.R. § 404.1566(e). The Secretary must determine if the claimant’s impairments are severe; if so, do they meet a medical listing, or do they prevent the claimant from performing other work within the economy. The Secretary determined that Lee’s impairments, both physical and mental, were severe, but did not meet any medical listing and did not prevent him from performing other work. The Secretary found Lee has the residual functional capacity to perform the physical exertion and non-exertional requirements of sedentary and light work, except for prolonged standing or walking, lifting beyond fifteen to twenty pounds, repetitive bending, stooping, pushing and pulling and work involving more than simple, unskilled activities. The Secretary found Lee suffers from mild mental retardation and a dysthymic disorder which, along with additional non-exertional limitations, prevent him from performing the full range of light work. The Secretary particularly" }, { "docid": "11305820", "title": "", "text": "intractable, and disabling. Nelson contends that the AU erred in utilizing the grid in light of the finding that Nelson’s testimony concerning pain was credible. The Medical-Vocational guidelines outlined in Appendix 2, and summarized in the tables found in Appendix 2, “do not direct factual conclusions of disabled or not disabled for individuals with solely nonexertional types of impairments.” 20 C.F.R. Part 404, Subpart P, App. 2 § 200.00(e)(1). The regulations “recognize that some claimants may possess limitations not factored into the guidelines” and “provide that the rules will be applied only when they describe a claimant’s abilities and limitations accurately.” Heckler v. Campbell, 461 U.S., 458, 462 n. 5, 103 S.Ct. 1952, 1955 n. 5, 76 L.Ed.2d 66 (1983). Thus, where an individual is rendered disabled because of a nonexertional impairment, such as pain, the grid is inapplicable; a determination of disabled or not disabled is then reached through the testimony of vocational experts who can indicate what work, if any, the claimant is capable of performing. The fact that a claimant suffers from a nonexertional impairment does not, however, immediately preclude utilization of the grid. “[B]efore reaching the conclusion that the grid will not be applied because [the] claimant alleges nonexertional limitations, those nonexertional limitations must be severe enough to restrict a full range of gainful employment at the designated level.” Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 537 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). In this case, Nelson testified that she experienced pain; the AU credited her testimony, but was not persuaded that the pain was so severe as to be disabling. This conclusion was properly based on the absence of medical evidence which would support the conclusion that the pain would be disabling. See 42 U.S.C. § 423(d)(5)(A) (medical evidence must support conclusion that claimant is disabled due to pain). Moreover, when read as a whole, the findings reflect that the AU was persuaded Nelson could perform a variety of work related functions despite the fact that she might experience some discomfort in the" }, { "docid": "3871598", "title": "", "text": "n. 5, 103 S.Ct. 1952, 1955 n. 5, 76 L.Ed.2d 66 (1983). The question for this court is whether substantial evidence in the record as a whole supports application of the guidelines to Caldarulo’s claim. See Strunk v. Heckler, 732 F.2d 1357, 1359 (7th Cir.1984). In denying Caldarulo benefits, the Secretary relied on Rules 202.17 and 202.-18, which direct a finding of “not disabled” for a “younger individual,” unskilled, with a limited education. While it is undisputed that Caldarulo satisfies the age, skill, and education requirements of the Rules, he contests the conclusion that he retained the residual functional capacity to perform the full range of light work contemplated by the grid. “Light work,” as defined by the Guidelines, involves lifting no more than 20 pounds at a time with frequent lifting or carrying objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing or pulling of arm or leg controls.... 20 C.F.R. 404.1568(b). Caldarulo argues that his testimony, corroborated by his daughter’s, that he was in severe pain and could neither sit nor stand nor lift ten to twenty pounds, establishes the existence of nonexertional impairments—namely chronic pain—which diminishes his ability to perform even the light work contemplated by the Guidelines, thus making their application inappropriate. See Schweiker, 735 F.2d at 271 (“Even if a claimant has the residual functional capacity to meet the exertional requirements for [light work], the regulations acknowledge that ‘non-ex-ertional’ limitations—such as ‘mental, sensory, or skin impairments’ ...—may make application of the Guidelines improper.”). Moreover, Caldarulo maintains that the Secretary must prove that his pain is not incapacitating to make use of the grids. See Lewis v. Heckler, 808 F.2d 1293 (8th Cir.1987). We are compelled to reject Caldarulo’s contentions. As did the district court, we believe that the Secretary is “permitted to conclude that a nonexertional limitation, while present, has no significant impact on a claimant’s capacity to perform the range" }, { "docid": "22158977", "title": "", "text": "Human Services, 666 F.3d 662, 665 n. 6 (1st Cir.1981). In cases where a nonexertional impairment “significantly affects claimant’s ability to perform the full range of jobs” he is otherwise exertion-ally capable of performing, Lugo, 794 F.2d at 17, “the Secretary must carry his burden of proving the availability of jobs in the national economy by other means,” Gag-non, 666 F.2d at 665 n. 6, typically through the use of a vocational expert. See, e.g., Burkhart v. Bowen, 856 F.2d 1335, 1340-41 (9th Cir.1988); Burgos Lopez, 747 F.2d at 42; Sherwin, 685 F.2d at 3. On the other hand, should a nonexertional limitation be found to impose no significant restriction on the range of work a claimant is exertionally able to perform, reliance on the Grid remains appropriate. See, e.g., Caldarulo v. Bowen, 857 F.2d 410, 413 (7th Cir.1988); Rodriguez Pagan v. Secretary of Health and Human Services, 819 F.2d 1, 3-4 (1st Cir.1987) (per curiam), cert. denied, 484 U.S. 1012, 108 S.Ct. 713, 98 L.Ed.2d 663 (1988); Borrero Lebrón v. Secretary of Health and Human Services, 747 F.2d 818, 818-20 (1st Cir.1984) (per curiam). Id. at 725. Moreover, even where a nonexertional impairment is significant, the Grid may still be used as “a framework for consideration of how much the individual’s work capability is further diminished_” 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e)(2) (1988). Whether, by so invoking the Grid as a “framework,” the Secretary can satisfy his burden under step five without resorting to vocational evidence depends on how closely the claimant’s characteristics and the Grid criteria overlap. As mentioned above, the Grid is meant to reflect the potential occupational base remaining to a claimant in light of his strength limitations. If a non-strength impairment, even though considered significant, has the effect only of reducing that occupational base marginally, the Grid remains highly relevant and can be relied on exclusively to yield a finding as to disability. Yet the more that occupational base is reduced by a nonexertional impairment, the less applicable are the factual predicates underlying the Grid rules, and the greater is the" }, { "docid": "22158976", "title": "", "text": "of light work-a determination that would yield a finding of not disabled under Grid Rule 202.18. IV. Nonexertional impairments are treated differently under the regulatory scheme. As noted above, under the final test in the five-stage sequential analysis, once a claimant has demonstrated a severe impairment that prohibits return to his previous employment, the Secretary has the burden of proving the existence of other jobs in the national economy that the claimant can perform. 20 C.F.R. § 404.1520(f) (1988). The Grid is designed to enable the Secretary to satisfy this burden in a “streamlined” fashion without resorting to “the live testimony of vocational experts.” Skerwin, 685 F.2d at 4. Yet the Grid is “predicated on an individual’s having an impairment which manifests itself by limitations in meeting the strength requirements of jobs_” 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e) (1988) (emphasis added). Accordingly, where a claimant has one or more non-strength limitations, “the Guidelines do not accurately reflect what jobs would or would not be available.” Gagnon v. Secretary of Health and Human Services, 666 F.3d 662, 665 n. 6 (1st Cir.1981). In cases where a nonexertional impairment “significantly affects claimant’s ability to perform the full range of jobs” he is otherwise exertion-ally capable of performing, Lugo, 794 F.2d at 17, “the Secretary must carry his burden of proving the availability of jobs in the national economy by other means,” Gag-non, 666 F.2d at 665 n. 6, typically through the use of a vocational expert. See, e.g., Burkhart v. Bowen, 856 F.2d 1335, 1340-41 (9th Cir.1988); Burgos Lopez, 747 F.2d at 42; Sherwin, 685 F.2d at 3. On the other hand, should a nonexertional limitation be found to impose no significant restriction on the range of work a claimant is exertionally able to perform, reliance on the Grid remains appropriate. See, e.g., Caldarulo v. Bowen, 857 F.2d 410, 413 (7th Cir.1988); Rodriguez Pagan v. Secretary of Health and Human Services, 819 F.2d 1, 3-4 (1st Cir.1987) (per curiam), cert. denied, 484 U.S. 1012, 108 S.Ct. 713, 98 L.Ed.2d 663 (1988); Borrero Lebrón v. Secretary of Health and" }, { "docid": "7450553", "title": "", "text": "performing a full or wide range of light work, [the applicant] must have the ability to do substantially all of these activities. 20 C.F.R. § 404.1567(b). . The ALJ also considered the medical testimony of two other examining physicians.- In January of 1983, Dr. Fallah, a specialist in gastroen-terology and internal medicine, treated Pugh after he was hospitalized for shortness of breath, marked wheezing in both lungs, and a productive cough with blood-tinged sputum. Dr. Fallah diagnosed chronic obstructive pulmonary disease with bronchopneumonia. In August of 1983, Pugh was again admitted into the hospital for shortness of breath, a productive cough, and chest pains. In April, 1984, Dr. Brasch, a specialist in internal medicine, examined Pugh after he complained of shortness of breath, chest pains, and hypertension. Dr. Brasch opined that Pugh’s clinical descriptions of his chest pain suggested chronic pulmonary emphysema rather than problems of a cardiac origin. He found that Pugh's blood pressure was in the “moderately to markedly\" elevated range. However, there was no evidence of any enlargement of the heart or of congestive heart failure. Dr. Brasch did note an early degree of hypertensive retinopathy (defined as any type of noninflammatory disease of the retina). Musculosketal and neurological examinations were normal. .Use of the grid is not appropriate where a claimant’s non-exertional impairments preclude the claimant from performing the full range of work in any given exertional level. However, an ALJ is \"permitted to conclude that a non-ex-ertional limitation, while present, has no significant impact on a claimant's capacity to perform the range of work the individual is otherwise exertionally capable of performing_” Caldarulo v. Bowen, 857 F.2d 410, 413 (7th Cir.1988) (quoting Smith v. Scweiker, 735 F.2d 267, 272 n. 3 (7th Cir.1984)). Because the AU relied upon the opinions of Dr. Bernet and Dr. Kim to conclude that Pugh should only avoid \"excessive” amounts of respiratory irritants, rather than most work environments, the grid could be utilized to determine whether he was disabled. See, e.g., id.; Warmoth v. Bowen, 798 F.2d 1109, 1111-12 (7th Cir.1986) (discussing SSR 85-7); see also SSR 85-15. . When" }, { "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": "22406815", "title": "", "text": "availability of jobs such a claimant could perform); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986) (\"[I]f a claimant suffers from additional nonexertional’ impairments, the grid rules may not be controlling.”); Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir.1987) (an ALJ may not rely solely on the grids where “nonexertional limitations ... occur in conjunction with exertional limitations”); Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir.1987) (when the claimant has nonexertional impairments that significantly affect his residual functional capacity, the ALJ may not rely exclusively on the guidelines in determining whether there is other work available that the claimant can perform); Abbott v. Sullivan, 905 F.2d 918, 926-27 (6th Cir.1990) (when the claimant suffers from a nonexertional impairment significantly restricting the range of available work, the grids may be used only as a framework to provide guidance for decision making, and not to direct a conclusion of nondisability); Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir.1986) (per curiam) (when a claimant's nonexertional impairments further restrict his range of employment opportunities, application 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" }, { "docid": "16787819", "title": "", "text": "Secretary may use the Grids to determine whether other work exists that a claimant could perform. Heckler v. Campbell, 461 U.S. 458, 467-69, 103 S.Ct. 1952, 1957-58, 76 L.Ed.2d 66 (1983). Where the various factors do not coincide with any specific rule or where the claimant has nonexertional impairments which further limit the range of jobs he can do, the Grids may not be used to direct a finding of not disabled. However, they may be used as a guideline in evaluating the case. 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(d) and (e)(2); see also Gatson v. Bowen, 838 F.2d 442, 446 (10th Cir.1988). Eggleston alleges that the AU erred in applying the Grids. He alleges that his nonexertional limitations due to pain preclude use of the Grids. The presence of a nonexertional impairment does not preclude the use of the Grids. Channel v. Heckler, 747 F.2d 577, 582 n. 6 (10th Cir.1984). Use of the Grids is only precluded to the extent that nonexertional impairments further limit the claimant’s ability to perform work at the applicable exertional level. Teter v. Heckler, 775 F.2d 1104, 1105 (10th Cir.1985). In this case, the AU found that Eggleston could perform the full range of light work in spite of his pain. As noted above, this finding is supported by substantial evidence. Furthermore, contrary to Eggleston’s allegations, the AU did not rely solely on the Grids to determine that he is not disabled. The AU used the Grids as a guideline and also considered testimony of three vocational experts. We find that the AU did not err in his use of the Grids as a guideline. Next Eggleston alleges that the AU erred in finding that Eggleston had the exertional capacity and skills to do a number of occupations. Whether the Grids are used to automatically determine disability or merely as a guideline, the AU must make findings concerning the relevant factors. These factors are residual functional capacity, transferable skills, age, and education. Eggleston’s age is not in dispute. At the time of the AU’s decision he was 53, which" }, { "docid": "5310671", "title": "", "text": "McRoberts’s ability to perform even sedentary work at a significantly gainful level. A general finding that a claimant is able to perform the requirements of sedentary work activity is insufficient to demonstrate that the Secretary has met his burden of showing that claimant retains residual capacity to work. Cowart v. Schweiker, 662 F.2d 731, 736 (11th Cir.1981). We also find that the Secretary’s use of Medical Vocational Guidelines (the grids) located at 20 C.F.R. Part 404, Sub-part P, App. 2 (1986) was improper. The grids are a series of regulations which, based upon factors of age, education, work experience, and residual functional capacity, compel a determination of whether the claimant is or is not disabled. In Gibson v. Heckler, 762 F.2d 1516 (11th Cir.1985), this court held that grids should not be applied when the variables used did not take into account the claimant’s particular limitations. Gibson, 762 F.2d at 1521. The grids are not appropriate when exertional limitations are not considered. The court in Gibson found that although the AU found claimant had the exertional capacity to perform some sedentary work, the grid rules did not take into account claimant’s limitations in performing such work. In this case, the AU applied grid rules 201.24-201.26 to determine the existence of jobs in the national economy. As in Gibson, however, the grids do not consider McRoberts’s individual limitations. McRo-berts has problems sitting and standing for a prolonged period of time because of chronic pain. Indeed, the regulations recognize that claimants may possess limitations not factored into the guidelines and provide that the rules are inapplicable unless they describe the limitations accurately. Gibson, 762 F.2d at 1520 (citing Heckler v. Campbell, 461 U.S. 458, 462 n. 5, 103 S.Ct. 1952, 1955 n. 5, 76 L.Ed.2d 66 (1983)). The AU applied a mechanical approach to the regulations without taking into consideration that claimant’s condition does not fully coincide with the rules. The language of the AU’s opinion indicates that the AU felt bound by grids to render a finding of “not disabled.” Clearly, a claimant’s limitations that are not factored within a given" }, { "docid": "18723875", "title": "", "text": "the claimant is capable of performing gainful work. Id. §§ 404.1520(f), 416.920(f). The Secretary promulgated the grids to aid in the fifth stage of the procedure. The grids specify whether a significant number of jobs in the national economy exist for a claimant of a given age, education, work experience, and residual functional capacity (that is, functional level of work that the claimant can physically perform on a sustained basis). In Heckler v. Campbell, 461 U.S. 458, 467-68, 103 S.Ct. 1952, 1957-58, 76 L.Ed.2d 66 (1983), the Supreme Court upheld the use of the grids in appropriate circumstances. However, the Court cautioned that the grids apply “only when they describe a claimant’s abilities and limitations accurately.” Id. at 462 n. 5, 103 S.Ct. at 1955 n. 5. “If an individual’s capabilities are not described accurately by a rule [in the grids], the regulations make clear that the individual’s particular limitations must be considered.” Id. The grids do not take into account nonexertional impairments. Thus, applying the grids to a claimant with nonexertional impairments may lead to an inaccurate finding that jobs exist that the claimant can perform. As the Secretary’s regulations state: Since the rules are predicated on an individual’s having an impairment which manifests itself by limitations in meeting the strength requirements of jobs, they may not be fully applicable where the nature of an individual’s impairment does not result in such limitations, e.g., ... environmental restrictions. Environmental restrictions are those restrictions which result in inability to tolerate some physical feature(s) of work settings that occur in certain industries or types of work, e.g., an inability to tolerate dust or fumes. 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.-00(e) (emphasis added). To the extent that the claimant’s nonexertional limitations reduce her ability to perform jobs of which she is exertionally capable, the Secretary may not rely solely on the grids. Channel v. Heckler, 747 F.2d 577, 581 (10th Cir.1984) (per curiam); Smith v. Schweiker, 719 F.2d 723, 725 (4th Cir.1984); Gagnon v. Secretary of Health and Human Services, 666 F.2d 662, 666 (1st Cir.1981). The regulations provide" }, { "docid": "6257085", "title": "", "text": "Chapter III, 20 C.F.R. §§ 200.00-204.00 (1987). In appropriate cases the Grid alone will constitute substantial evidence sufficient to affirm the Secretary. Walker at 640, citing Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Use of the Grid may be inappropriate, however, where a claimant suffers from severe non-exertional impairments, including pain. Walker at 640, citing Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Even where use of the Grid is inappropriate, it may be used as a “framework”, along with other evidence such as the input of a vocational expert, to determine the effect of a non-exertional impairment on the job base. Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir.1986). See also, 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2)(1985). The ultimate test is whether the record contains “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.” Warmoth at 1112, citing Nelson v. Secretary of Health and Human Services, 770 F.2d 682, 684-85 (7th Cir.1985) (per curiam). II. The record indicates that Mr. Kelsey was born on October 2, 1942, and was, at the time of his hearing, forty-three years of age with a tenth grade education. His prior work experience for the relevant time period included bricklaying and operating heavy equipment in the construction business. In January of 1983, a large Caterpillar engine fell on Mr. Kelsey. He apparently worked the remainder of the day and about a week thereafter, but at some point saw his family doctor due to a sharp pain in his right groin, which he also experienced at the time of the accident. He was referred to the Arnett Clinic, where a Dr. Perez referred him to Dr. McPherson, who in turn referred the claimant to Dr. Jaap Lind, who admitted Mr. Kelsey to Lafayette Home Hospital on March 7, 1983. He underwent a series of tests including a myelogram to determine the source of his pain, which now was located primarily in the lower back. In" }, { "docid": "1178333", "title": "", "text": "little effect on the range of work remaining that an individual can perform. The person, therefore, comes very close to meeting a table rule which directs a conclusion of ‘Not disabled.’ On the other hand, a[ ] ... nonexertional limitation may substantially reduce a range of work to the extent that an individual is very close to meeting a table rule which directs a conclusion of ‘Disabled.’ Social Security Ruling 83-14 at 205 (CE 1983). But other cases (those falling between the two extremes) are more complex and generally will necessitate additional evidence to determine the effects of the nonexertional limitation on the job base. Id. 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, see 20 C.F.R. § 404.1566(e) (1985) (Secretary may use his discretion in employing the services of a vocational expert); 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. Nelson v. Secretary of Health and Human Services, 770 F.2d at 684-85; see also Clark v. Heckler, 733 F.2d 65, 69 (8th Cir.1984) (per curiam); Ferguson v. Schweiker, 641 F.2d 243, 247-48 (5th Cir.1981). The record in the present case admits of none. We therefore conclude that the Secretary erred when he in effect summarily took administrative notice that there is a significant number of unskilled, sedentary jobs in the national economy that Warmoth can perform. See Cummins v. Schweiker, 670 F.2d 81, 84 (7th Cir.1982) (ALJ must determine “in a responsible manner” whether nonexertional impairments would interfere with type of jobs claimant can exertionally perform). It may be that Warmoth can still perform a significant number of jobs which exist in the national economy; however, the present record does not support that determination. Because the record is without substantial evidence to support the Secretary’s decision, we Reverse the grant of summary judgment and Remand to" } ]

[ { "docid": "22692399", "title": "", "text": "reason for this conclusion that the “net addition if any, required by law to be made within the year to reserve -funds” which the act of Congress permitted to be deducted from gross income was limited to reserves required by express statutory provision and did not apply to reserves required by the rules and regulations of State Insurance Departments, when promulgated in the exercise of an appropriate power conferred by statute. In this the Court of Claims fell into error. It is settled by many recent decisions of this court that a regulation by a department of government, addressed to and reasonably-adapted to the enforcement of an act of Congress, the administration of which is confided to such department, has the force and effect of law if it be not in conflict with express statutory provision. United States v. Grimaud, 220 U. S. 506; United States v. Birdsall, 233 U. S. 223, 231; United States v. Smull, 236 U. S. 405, 409, 411; United States v. Morehead, 243 U. S. 607. The law is hot different with respect, to the rules and regulations of a department of a state government. But it is contended by the claimant that it was required to provide “reserves” for the payment of the rejected items of liability: because the Court of Claims found that pursuant- to statutes -the Insurance Department of Pennsylvania required the company, as a condition of doing business:in:that State, to keep on hand “assets as reserves” sufficient-to cover all claims against the company “whether due hr accrued”; because the department of New York required'it to maintain “reserves sufficient to mfeet all of its accrued but unpaid indebtedness in each year”; and because' tibie department of Wisconsin required it to carry “sufficient reserves to cover all of its outstanding liabilities A Whether this contention of tñe claimant can be justified or not depends upon the meaning which is to be given to the words “reserve funds” in the two acts of Congress we are considering. The term “reserve” or “reserves” has a special meaning in the law of insurance. While its scope" } ]

[ { "docid": "3572218", "title": "", "text": "July 6, 1986. Additional TRA benefits are weekly cash benefits that a qualified adversely-affected worker may receive for up to an additional 26 weeks in order to assist her in completing TAA-approved training. Because the eligibility period coincided with Plaintiff’s receipt of unemployment insurance benefits, MDOL did not pay Plaintiff any Additional TRA benefits. She appealed this determination through the state administrative process to no avail, and while her appeal was pending, she filed an intervenor complaint in this case. From 1975 to 1981 the MDOL followed the promulgated regulations for the Trade Act and determined an individual’s eligibility for TRA benefits based on the date of his last separation from employment. After the 1981 amendments to the Act, Maine followed the DOL’s instructions to base TRA eligibility on a worker’s “first separation.” In 1986, however, as a result of administrative appeals of MDOL’s first separation decisions, the Maine Unemployment Insurance Commission ruled that the 1975 regulations were still valid and binding and that eligibility should still be based on a worker’s last separation. The Act was, therefore, being interpreted differently by different administrative bodies in the State of Maine. The DOL disagreed with the Unemployment Commission’s decisions and again instructed the MDOL to use the first separation from employment in determining TRA eligibility. The MDOL reconsidered the issue, and in order to conform to the Maine Unemployment Insurance Commission’s interpretation, on May 1, 1986, changed its policy and began again to base TRA eligibility decisions on a worker’s last separation from employment. Using the last separation date, the MDOL also began to redetermine claims decided within the one-year period prior to the policy change. By letter dated July 24, 1986, the DOL threatened to impose penalties if Maine did not follow DOL’s first separation interpretation of the Act. After receiving this letter, the MDOL interrupted the redetermi-nation process, subsequently deciding not to reinstitute it. Thus, Plaintiff’s application for TRA benefits, which had initially been decided in the year before the MDOL’s change of policy, would have been reconsidered using the last separation policy had the State’s redeterminations been continued." }, { "docid": "3572215", "title": "", "text": "amend the implementing regulations. Rather, beginning in October 1981, the DOL issued a series of interpretative letters directing the states, which administer the TRA benefits, to calculate a worker’s eligibility based upon the individual’s first separation before application for TRA benefits. New regulations requiring the use of first separation were proposed but' not promulgated. The statute’s new exhaustion requirement first was explained in interpretative letters and then implemented in the same terms in regulations. The Trade Act provides that the states, by agency agreement, shall act as agents of the DOL to administer the TRA program. The Act and its implementing regulations mandate that Maine make the individual eligibility determinations for TRA benefits using the same procedures that it uses for claims for state unemployment compensation. 19 U.S.C. §§ 2294, 2319(10). Thus, claims for TRA benefits are processed under 26 M.R.S.A. § 1194. State law provides for an initial eligibility determination by a deputy of the Bureau of Employment Security, a division of the MDOL. 26 M.R.S.A. § 1194(2). The claimant may appeal an adverse decision to the Division of Administrative Hearings. 26 M.R.S.A. § 1194(3). Appeal may be had from that decision to the Maine Unemployment Insurance Commission, 26 M.R.S.A. § 1194(5), and appeal from that body’s determination may be had first to the Maine Superior Court, 26 M.R.S.A. § 1194(8), and then to the Law Court. 5 M.R.S.A. § 11001 et seq. Plaintiff was a shoe worker employed by a company certified by the DOL as being adversely affected by foreign competition. She was first laid off in November 1984, for two weeks, and in February 1985 she was laid off again for eight weeks. On April 10,1985, she applied for benefits. On May 29, 1985, the MDOL issued two decisions in response to her application. First, based on the November 1984 lay-off, her first separation, Plaintiff was determined to be eligible for Trade Adjustment Assistance (TAA), another benefit package under the Trade Act which includes retraining. The second decision stated that Plaintiff was eligible to receive TRA payments, with her period of eligibility running from December 31," }, { "docid": "3572254", "title": "", "text": "104 weeks from his most recent separation prior to the worker’s first application for benefits, rather than from the first qualifying separation. Ex. W, at 2. Thus, it appears that when Maine did use the applicant's last separation to determine eligibility for TRA benefits, it did it so differently than had been prescribed by the DOL prior to 1981. There is a significant potential question, therefore, of how Maine will construe the term last separation when it is ordered to apply it. The issue addressed in this case, however, is the application of the first separation policy in determining Plaintiff's TRA benefits. Although Plaintiff argues that the Department of Labor’s last separation policy requires a new TRA eligibility decision after each qualifying separation, the Court has no occasion to explicate the last separation policy in this opinion, because it has yet to be applied to Plaintiff, except obliquely in the context of the state administrative bodies’ refusal to allow her to appeal. Indeed, Plaintiff has only recently settled on the interpretation which she now propounds. Her counsel argues in the intervenors' reply brief that in the course of this litigation, Plaintiff and the State erroneously interpreted the term \"last separation.\" In-tervenors' Reply Brief, at 2 n. 1. Because the doctrine was never directly applied to her, and its significance was late to appear, and because of the complex procedural path of this case, Plaintiff, understandably, has not challenged the State’s interpretation of last separation in her complaint. Rather, she has raised her arguments only as a defense to the defense of administrative finality, which the Court has said it will not address. Either the state courts or this Court will address the question of how the last separation policy operates when and if it arises. . In the same vein, Plaintiff also asserts that the notice was deceptive because it did not inform her that her period of eligibility for Additional TRA benefits was dependent on the period of eligibility for Basic TRA benefits and that failure to appeal the initial determination would preclude receipt of the Additional benefits." }, { "docid": "3572216", "title": "", "text": "decision to the Division of Administrative Hearings. 26 M.R.S.A. § 1194(3). Appeal may be had from that decision to the Maine Unemployment Insurance Commission, 26 M.R.S.A. § 1194(5), and appeal from that body’s determination may be had first to the Maine Superior Court, 26 M.R.S.A. § 1194(8), and then to the Law Court. 5 M.R.S.A. § 11001 et seq. Plaintiff was a shoe worker employed by a company certified by the DOL as being adversely affected by foreign competition. She was first laid off in November 1984, for two weeks, and in February 1985 she was laid off again for eight weeks. On April 10,1985, she applied for benefits. On May 29, 1985, the MDOL issued two decisions in response to her application. First, based on the November 1984 lay-off, her first separation, Plaintiff was determined to be eligible for Trade Adjustment Assistance (TAA), another benefit package under the Trade Act which includes retraining. The second decision stated that Plaintiff was eligible to receive TRA payments, with her period of eligibility running from December 31, 1984, to December 28, 1985. On July 3, 1985, Plaintiff was laid off finally from her job. She sought the TAA benefits for which she had been determined eligible by the MDOL, and she received approval for a retraining program in accounting at a Lewiston college. The approval notice, issued on August 8, 1985, stated that she was “entitled to Trade Readjustment Allowances while receiving training.” Ex. DD. The approval form for Plaintiffs second semester request for TAA retraining benefits, issued January 9, 1986, after her previously determined eligibility period had expired, stated that she was not entitled to receive TRA benefits during retraining. Id. Plaintiff never received any TRA benefits. Plaintiff did receive state unemployment insurance benefits during the first several months of her retraining, and she orally made a new application for TRA benefits when the unemployment benefits were exhausted in July 1986. The MDOL treated this request as an application for Additional TRA benefits and on July 29, 1986, established an eligibility period for Additional TRA benefits of January 5, 1986 to" }, { "docid": "3572223", "title": "", "text": "mandated that the eligibility period for TRA be calculated based on the applicant’s last separation from adversely affected employment. Specifically, Plaintiff asserts that she did not receive the benefits due her because the federal Defendants were enforcing an eligibility policy based on an applicant’s first separation from adversely affected employment which directly conflicted with their properly promulgated regulation. The state Defendants have argued that they only used the first separation standard because it was required by the federal Defendants. The federal defendants, in turn, argue that there remains no issue between them and Plaintiff because the Secretary has already determined that Maine did not violate its Trade Act agreement by using a worker’s last separation as the basis for TRA eligibility calculations after the 1981 OBRA amendments. As Plaintiff contends, an agency is bound by its own legislative regulations. United States v. Nixon, 418 U.S. 683, 694-96, 94 S.Ct. 3090, 3100-02, 41 L.Ed.2d 1039 (1974); see also, Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957). The Court is satisfied that the “last separation” regulation at issue here is a legislative rule requiring the agency’s adherence. See 2 K. Davis, Administrative Law Treatise, § 7.21, at 98 (2d ed. 1979). The Secretary exercised delegated authority in promulgating regulations necessary to carry out the provisions of the Act, 19 U.S.C. § 2320, and the legislative and regulatory framework suggests that the Secretary, at the time of their promulgation, intended the regulations to have legislative effect. See Levesque v. Block, 723 F.2d at 182. Moreover, from its inception the Secretary had issued detailed regulations on the Trade Act which were mandatory on the states. See Levesque v. Block, 723 F.2d at 183. The Levesque court stated, as is true here, that “it is inconceivable that [the Secretary] would have allowed the [state plan] to include a different definition.” Id. In his administrative decision, the Secretary recognized both the legislative nature of a “first separation” regulation to implement the OBRA amendments and the necessity of formally promulgating any such regulation. Ex. Z at 11. It was theoretically" }, { "docid": "3572228", "title": "", "text": "claim in the state administrative forum.” Cunningham v. United States Department of Labor, 670 F.Supp. 1062, 1065 (D.Me.1987). In so ruling, the Court relied on International Union, U.A.W. v. Brock, 816 F.2d 761, 768-69 (D.C.Cir.1987). That case properly construed the Trade Act, 19 U.S.C. § 2311(d), as being “quite explicit that individual TRA benefit determinations are for the' state courts to decide according to the procedural requirements of state law.” Id. at 768. Thus, the court stated: “[Ojnce the Secretary has issued new guidelines and directives setting forth the correct interpretation of section 231 of the Trade Act, it will be for the state courts to determine whether and to what extent previously litigated cases may be subject to reconsideration under state law.” Id. Brock made plain that this Court can order Defendants to take appropriate action to enforce the “last separation” interpretation of the statute, which the Court has determined was the proper one from its promulgation until the new “first separation” regulations were promulgated in 1987, and “consistent with state law to correct any erroneous eligibility determinations that may have occurred as a result of [their] incorrect interpretation.” Id. at 769. In the proceedings following this one in the state administrative and judicial fora, Defendant Commissioner can present the arguments that he seeks to raise here, and Plaintiff, similarly, will be able to present all of her arguments why the doctrines of res judicata and administrative finality should not apply in her case. • VI. Due Process Despite the Court’s prior ruling, there is one issue bearing on questions of res judicata and administrative finality which the Court must address now. The complaint presents a claim for denial of due process, asserting that the notice provided to Plaintiff describing her eligibility period for basic TRA and the basis for that determination was constitutionally inadequate. The federal Defendants argue that the Court has no jurisdiction to hear the due process claim because of its relationship to the issues left by the Act to the States. The Supreme Court, however, in International Union, U.A.W. v. Brock, 477 U.S. 274, 106" }, { "docid": "3572219", "title": "", "text": "Act was, therefore, being interpreted differently by different administrative bodies in the State of Maine. The DOL disagreed with the Unemployment Commission’s decisions and again instructed the MDOL to use the first separation from employment in determining TRA eligibility. The MDOL reconsidered the issue, and in order to conform to the Maine Unemployment Insurance Commission’s interpretation, on May 1, 1986, changed its policy and began again to base TRA eligibility decisions on a worker’s last separation from employment. Using the last separation date, the MDOL also began to redetermine claims decided within the one-year period prior to the policy change. By letter dated July 24, 1986, the DOL threatened to impose penalties if Maine did not follow DOL’s first separation interpretation of the Act. After receiving this letter, the MDOL interrupted the redetermi-nation process, subsequently deciding not to reinstitute it. Thus, Plaintiff’s application for TRA benefits, which had initially been decided in the year before the MDOL’s change of policy, would have been reconsidered using the last separation policy had the State’s redeterminations been continued. In August 1986 MDOL and its officers sought a declaratory judgment in this Court to determine the proper interpretation- of the TRA eligibility requirements. Plaintiff intervened in September 1986, and the parties were realigned as they now appear in September 1987. Shortly after the MDOL filed suit, the DOL scheduled a hearing to determine if Maine had fulfilled its commitment under its 1975 agreement to administer TRA benefits and whether a statutory penalty should be imposed on State employers. On November 26, 1986, an Administrative Law Judge recommended that no penalty be im posed on Maine. The’ Secretary of Labor found that given the unrepealed and unsu-perseded regulations, Maine’s most recent interpretation of the Act, using last separation as the basis for eligibility determinations, was not unreasonable and Maine should not be penalized. This result was confirmed in an Order on a Motion for Clarification. Noting that the DOL had apparently acceded to the permissibility of Maine’s interpretation of the Act, this Court stayed the case in order to allow Plaintiff to seek reconsideration of" }, { "docid": "3572250", "title": "", "text": "able to obtain a reversal of that determination by appealing to the Commission. This would engender needless appeals. Even worse, it would create a highly unfair and unlawful double standard — whereby one rule would be applied to applicants who do not appeal from the denial of TRA payments and another rule would be applied to those who do appeal. Complaint, D.I. 1, ¶ 36. . Plaintiff was initially denied benefits on the basis of the Secretary’s first separation policy. Moreover, she did not receive a redetermination based on last separation, although the State had decided to redetermine cases like hers, because the federal Defendants threatened the State Defendants with severe penalties if they continued to use the lást separation standard. . In the intervenors' brief, counsel, who also represents Plaintiff, states that because the exhaustion issue gains no more for Plaintiff and the intervenors than does the last separation issue, Plaintiff assumes it to be unlikely that the Court will reach the exhaustion issue. Brief of Intervenors Maxine Taggart and Joan Norris, at 4 n. 3. . Plaintiff's due process claim is based on the alleged inadequacy of the notice provided to Plaintiff concerning her eligibility for TRA benefits. The Amended Complaint also contains a count alleging that the notice provided to Plaintiff fails to meet the requirement set forth in 19 U.S.C. § 2275 that the Secretary provide full information to workers about TRA benefits, application procedures and appropriate filing dates under the Act. The merit of Plaintiff’s claim is not self-evident, and Plaintiff has not presented argument on the point. The Court, therefore, deems the statutory issue raised in Plaintiff's Fourth Claim for Relief waived. Collins v. Marina-Martinez,a 894 F.2d 474, 481 n. 9 (1st Cir.1990). . In a memorandum Plaintiff states that she told defense counsel in a phone call that she would not continue to assert her due process claim affirmatively in light of the Court’s previous order that res judicata would not bar her, but rather that she would hold it in reserve as a possible defense. Reply Brief in Support of Renewed Motion" }, { "docid": "3572217", "title": "", "text": "1984, to December 28, 1985. On July 3, 1985, Plaintiff was laid off finally from her job. She sought the TAA benefits for which she had been determined eligible by the MDOL, and she received approval for a retraining program in accounting at a Lewiston college. The approval notice, issued on August 8, 1985, stated that she was “entitled to Trade Readjustment Allowances while receiving training.” Ex. DD. The approval form for Plaintiffs second semester request for TAA retraining benefits, issued January 9, 1986, after her previously determined eligibility period had expired, stated that she was not entitled to receive TRA benefits during retraining. Id. Plaintiff never received any TRA benefits. Plaintiff did receive state unemployment insurance benefits during the first several months of her retraining, and she orally made a new application for TRA benefits when the unemployment benefits were exhausted in July 1986. The MDOL treated this request as an application for Additional TRA benefits and on July 29, 1986, established an eligibility period for Additional TRA benefits of January 5, 1986 to July 6, 1986. Additional TRA benefits are weekly cash benefits that a qualified adversely-affected worker may receive for up to an additional 26 weeks in order to assist her in completing TAA-approved training. Because the eligibility period coincided with Plaintiff’s receipt of unemployment insurance benefits, MDOL did not pay Plaintiff any Additional TRA benefits. She appealed this determination through the state administrative process to no avail, and while her appeal was pending, she filed an intervenor complaint in this case. From 1975 to 1981 the MDOL followed the promulgated regulations for the Trade Act and determined an individual’s eligibility for TRA benefits based on the date of his last separation from employment. After the 1981 amendments to the Act, Maine followed the DOL’s instructions to base TRA eligibility on a worker’s “first separation.” In 1986, however, as a result of administrative appeals of MDOL’s first separation decisions, the Maine Unemployment Insurance Commission ruled that the 1975 regulations were still valid and binding and that eligibility should still be based on a worker’s last separation. The" }, { "docid": "3572225", "title": "", "text": "possible for the Secretary to amend or revoke the regulation mandating use of last separation upon passage of OBRA, but he did not do so. As long as a properly promulgated regulation remained in force, the Secretary and the States were bound by it. See United States v. Nixon, 418 U.S. at 696, 94 S.Ct. at 3101. The federal Defendants argue, however, that the 1975 regulation was superseded by the statute itself. This argument is significantly weakened, however, since the Secretary himself has stated that the use of first separation is not mandated by the clear language of the statute. Ex. X at 8. In fact, the language of the statute as amended, basing eligibility for TRA benefits on a worker’s “total or partial separation before his application,” 19 U.S.C. § 2291(a)(1), does not explain when total or partial separation occurs. The explication is thus explicitly left to the Secretary, id. at §' 2320, who, with a regulation in place dealing with the same portion of the statute, did not choose to amend or revoke it. The Secretary held in his decision that “[u]ntil those final rules are published repealing or superseding the 1975 regulations, it was not unreasonable for Maine to continue to apply the ‘last separation’ rule for TRA eligibility.” Ex. X, at 9. The Court goes a step further to hold that with the regulation extant, and no clear statutory supercession, the agency and the state were required to follow it. As is evidenced by the divergent paths followed at different levels of the Maine administrative agency considering the issues, far too much uncertainty and waste of both state and federal governmental resources are generated by a system in which there are two conflicting rules and state agencies must choose between them. III.Mootness The federal Defendants also argue strenuously that Plaintiffs claims are moot because the Secretary has already determined that the use of last separation for the period before 1987 was permissible. The Court does not agree. First, Plaintiff was injured by the federal government’s enforcement of its first separation policy. Moreover, if the Court were" }, { "docid": "3572248", "title": "", "text": "1, 1984. . At the first level of appeal, Plaintiff received a favorable decision stating that her eligibility for benefits should have been determined based on the date of her last separation from employment, and that she should receive additional TRA benefits if otherwise eligible. Ex. to Supp. Ex.W. The agency, however, declined to award benefits since Plaintiff had failed to appeal the determination of Basic TRA eligibility. Id. . In December 1986, soon after the Secretary issued his decision, regulations were promulgated mandating use of a worker’s first separation as a basis for eligibility for TRA. . Regulations like this one can be legislative even though they restate the words of the statute. Levesque v. Block, 723 F.2d 175 (1st Cir.1983); 2 K. Davis, supra § 7.11, at 57. . In his administrative ruling, as support for his conclusion that the first separation policy implementing the OBRA amendments was a legislative rule, requiring the section 553 notice and comment procedures, the Secretary himself noted these and other parallels between this case and Levesque. S.R. Ex. Z at 10-11. . In fact, the agency was able to and did just that within a month following the administrative decision. See id. at 13. . As long ago as 1920 the Supreme Court stated: \"It is settled by many recent decisions of this court that a regulation by a department of government, addressed to and reasonably adapted to the enforcement of an act of Congress, the administration of which is confided to such department, has the force and effect of law if it be not in conflict with express statutory provision.” Maryland Casualty Co. v. United States, 251 U.S. 342, 349, 40 S.Ct. 155, 157-58, 64 L.Ed. 297 (1920). . The State Defendants’ complaint, when they were the Plaintiffs in the declaratory judgment action, makes plain the dilemma. It alleges: [I]f the Maine Department of Labor were to comply with the USDOL’s improper demand [to use an applicant’s first separation when determining TRA eligibility], any employees whose applications for TRA payments were denied based on their first date of separation would be" }, { "docid": "3572253", "title": "", "text": "did not brief it. Any apparent harshness of this ruling is undercut by the fact that the federal Defendants' agents, the State Defendants, have repeatedly and thoroughly briefed the due process issue. . In the administrative proceeding brought to enforce the federal first separation policy against the State’s then-held practice of using the last separation, the Administrative Law Judge made findings foreshadowing the problem which might arise and about which Plaintiff now argues: Maine begins the period of TRA eligibility with a worker’s \"last” qualifying separation; last is defined by Maine as the most recent separation prior to the worker’s application for individual TRA benefits. 29 C.F.R. § 91.3(20). Contrary to the apparent belief of D.O.L., and contrary to the way D.O.L. had applied the Trade Act prior to the 1981 amendments ..., Maine does not begin a new full 52 (104) week TRA eligibility period each time a worker has a subsequent qualifying separation after an interim period of re-employment. Maine does, however, permit a worker to begin a fixed TRA benefit period of 104 weeks from his most recent separation prior to the worker’s first application for benefits, rather than from the first qualifying separation. Ex. W, at 2. Thus, it appears that when Maine did use the applicant's last separation to determine eligibility for TRA benefits, it did it so differently than had been prescribed by the DOL prior to 1981. There is a significant potential question, therefore, of how Maine will construe the term last separation when it is ordered to apply it. The issue addressed in this case, however, is the application of the first separation policy in determining Plaintiff's TRA benefits. Although Plaintiff argues that the Department of Labor’s last separation policy requires a new TRA eligibility decision after each qualifying separation, the Court has no occasion to explicate the last separation policy in this opinion, because it has yet to be applied to Plaintiff, except obliquely in the context of the state administrative bodies’ refusal to allow her to appeal. Indeed, Plaintiff has only recently settled on the interpretation which she now propounds." }, { "docid": "3572221", "title": "", "text": "her claim in the appropriate state administrative agency. An MDOL officer issued a decision, holding that state principles of administrative finality precluded the reopening of Plaintiff’s claim for Basic TRA. The MDOL found that Plaintiff’s Basic TRA eligibility determination had become final under state law because she had adequate notice both of the basis of the Deputy’s decision and of the possible effect of that decision, but she had not appealed it within 15 days as required by 26 M.R.S.A. § 1194(2). Although in some instances state law provides for redetermination of benefit amount, id. § 1194(10), Plaintiff’s application for reconsideration was made far beyond the one year period allowed for such redetermina-tions. Id. The MDOL also decided that Plaintiff could not reopen the decision made on her application for Additional TRA benefits because that decision was based upon her unappealed Basic TRA decision. The MDOL found that the combination of the statute and the actual notice provided to Plaintiff after the decision was adequate to inform her of the necessity of appealing the initial decision in order to preserve her rights to Additional as well as Basic TRA benefits. Plaintiff appealed the Deputy’s decision to the Maine Unemployment Insurance Commission, but decision by that body was delayed because of a motion to disqualify the hearing officer. Because of the delay this Court decided to proceed to resolve the issues before it. While the case was pending before the Commission, Maxine Taggart and Joan Norris moved to intervene in this case and •for class certification. Maxine Taggart also moved to intervene in the state proceedings on behalf of herself and a similarly situated class. Supp.Ex.U. Neither the motion for intervention in the state proceedings nor the appeal there had been decided by the time the briefs in this case were filed. The motions of Taggart and Norris to intervene in this case also remain to be decided. II. First or Last Separation Plaintiff argues that both the federal and state Defendants were bound by the Department of Labor regulations that remained in effect from 1975 until January 1987. Those regulations" }, { "docid": "3572220", "title": "", "text": "In August 1986 MDOL and its officers sought a declaratory judgment in this Court to determine the proper interpretation- of the TRA eligibility requirements. Plaintiff intervened in September 1986, and the parties were realigned as they now appear in September 1987. Shortly after the MDOL filed suit, the DOL scheduled a hearing to determine if Maine had fulfilled its commitment under its 1975 agreement to administer TRA benefits and whether a statutory penalty should be imposed on State employers. On November 26, 1986, an Administrative Law Judge recommended that no penalty be im posed on Maine. The’ Secretary of Labor found that given the unrepealed and unsu-perseded regulations, Maine’s most recent interpretation of the Act, using last separation as the basis for eligibility determinations, was not unreasonable and Maine should not be penalized. This result was confirmed in an Order on a Motion for Clarification. Noting that the DOL had apparently acceded to the permissibility of Maine’s interpretation of the Act, this Court stayed the case in order to allow Plaintiff to seek reconsideration of her claim in the appropriate state administrative agency. An MDOL officer issued a decision, holding that state principles of administrative finality precluded the reopening of Plaintiff’s claim for Basic TRA. The MDOL found that Plaintiff’s Basic TRA eligibility determination had become final under state law because she had adequate notice both of the basis of the Deputy’s decision and of the possible effect of that decision, but she had not appealed it within 15 days as required by 26 M.R.S.A. § 1194(2). Although in some instances state law provides for redetermination of benefit amount, id. § 1194(10), Plaintiff’s application for reconsideration was made far beyond the one year period allowed for such redetermina-tions. Id. The MDOL also decided that Plaintiff could not reopen the decision made on her application for Additional TRA benefits because that decision was based upon her unappealed Basic TRA decision. The MDOL found that the combination of the statute and the actual notice provided to Plaintiff after the decision was adequate to inform her of the necessity of appealing the initial" }, { "docid": "3572213", "title": "", "text": "OPINION AND ORDER GENE CARTER, Chief Judge. I. Facts and Procedural History This suit involves a challenge to the Department of Labor’s regulations interpreting Title II, Section 231 of the Trade Act of 1974, as amended in 1981 by P.L. 97-35, 19 U.S.C. § 2291 (1982). This lawsuit was filed originally by officers of the Maine Department of Labor and Bureau of Employment Security (MDOL). The current Plaintiff, Cathy Tyler, intervened with other individuals and filed a separate complaint against the United States Department of Labor Defendants (DOL). Upon motion, the Court realigned the parties, making Tyler Plaintiff and the State Department of Labor and its officials Defendants along with the DOL. The Maine Department of Labor is also now a Cross-claimant against the Cross-claim Defendant DOL. The Trade Act of 1974 established a program of trade readjustment allowances (TRA), weekly support payments designed to assist workers who lost their jobs in industries affected by foreign imports. Under the statute, a worker could receive TRA benefits if the Secretary of Labor certified that the worker’s company had been adversely affected by foreign competition and if the worker also met certain eligibility requirements. 19 U.S.C. §§ 2271, 2291. Eligibility for TRA benefits between 1974 and 1981 was based upon the worker’s “last total or partial separation” before the application for benefits was filed. 19 U.S.C. § 2291 (1980). Regulations implementing this statutory requirement and calculating a worker’s eligibility on the basis of his or her last separation were promulgated in 1975 and remained in effect until January 1987. 29 C.F.R. § 91.1 et seq. In 1981 Congress amended the Trade Act’s eligibility requirements, deleting the requirement that the worker’s eligibility be based on the “last total or partial separation.” The new statutory language based eligibility simply on “total or partial separation,” 19 U.S.C. § 2291 (1986), and added an additional eligibility requirement that the worker have “exhausted all rights to any unemployment insurance to which he was entitled (or would be entitled if he applied therefor).” 19 U.S.C. § 2291(a)(3)(A) and (B). Despite these Trade Act amendments, the Secretary did not" }, { "docid": "3572224", "title": "", "text": "satisfied that the “last separation” regulation at issue here is a legislative rule requiring the agency’s adherence. See 2 K. Davis, Administrative Law Treatise, § 7.21, at 98 (2d ed. 1979). The Secretary exercised delegated authority in promulgating regulations necessary to carry out the provisions of the Act, 19 U.S.C. § 2320, and the legislative and regulatory framework suggests that the Secretary, at the time of their promulgation, intended the regulations to have legislative effect. See Levesque v. Block, 723 F.2d at 182. Moreover, from its inception the Secretary had issued detailed regulations on the Trade Act which were mandatory on the states. See Levesque v. Block, 723 F.2d at 183. The Levesque court stated, as is true here, that “it is inconceivable that [the Secretary] would have allowed the [state plan] to include a different definition.” Id. In his administrative decision, the Secretary recognized both the legislative nature of a “first separation” regulation to implement the OBRA amendments and the necessity of formally promulgating any such regulation. Ex. Z at 11. It was theoretically possible for the Secretary to amend or revoke the regulation mandating use of last separation upon passage of OBRA, but he did not do so. As long as a properly promulgated regulation remained in force, the Secretary and the States were bound by it. See United States v. Nixon, 418 U.S. at 696, 94 S.Ct. at 3101. The federal Defendants argue, however, that the 1975 regulation was superseded by the statute itself. This argument is significantly weakened, however, since the Secretary himself has stated that the use of first separation is not mandated by the clear language of the statute. Ex. X at 8. In fact, the language of the statute as amended, basing eligibility for TRA benefits on a worker’s “total or partial separation before his application,” 19 U.S.C. § 2291(a)(1), does not explain when total or partial separation occurs. The explication is thus explicitly left to the Secretary, id. at §' 2320, who, with a regulation in place dealing with the same portion of the statute, did not choose to amend or revoke" }, { "docid": "3572247", "title": "", "text": "it is ORDERED that (1) Joan Norris’s Motion to Intervene is hereby GRANTED; (2) Plaintiff’s Renewed Motion for Class Certification is hereby DENIED; (3) Intervenor Norris’s Motion for Class Certification is hereby DENIED; (4) Maxine Taggart’s Motion to Intervene is hereby DENIED. It is hereby DECLARED that the federal Defendants’ policy for the years 1981 through 1986, requiring use of an applicant’s first separation from employment for purposes of determining eligibility for TRA benefits, was INVALID. The State Defendants are hereby ORDERED, consistent with state law, to redetermine Plaintiff Tyler’s and Plaintiff-In-tervenor Norris’s entitlement to Basic TRA and Additional TRA weekly benefits, based on their last separation from employment prior to application. If TRA benefits are granted to Plaintiffs as a result of such redetermination, the federal Defendants are hereby ORDERED to provide federal monies for the payment of the benefits. SO ORDERED. . The DOL certified Plaintiff’s employer on March 25, 1985, and determined the date on which total or partial separation of workers began or threatened to begin, the “impact date,\" as January 1, 1984. . At the first level of appeal, Plaintiff received a favorable decision stating that her eligibility for benefits should have been determined based on the date of her last separation from employment, and that she should receive additional TRA benefits if otherwise eligible. Ex. to Supp. Ex.W. The agency, however, declined to award benefits since Plaintiff had failed to appeal the determination of Basic TRA eligibility. Id. . In December 1986, soon after the Secretary issued his decision, regulations were promulgated mandating use of a worker’s first separation as a basis for eligibility for TRA. . Regulations like this one can be legislative even though they restate the words of the statute. Levesque v. Block, 723 F.2d 175 (1st Cir.1983); 2 K. Davis, supra § 7.11, at 57. . In his administrative ruling, as support for his conclusion that the first separation policy implementing the OBRA amendments was a legislative rule, requiring the section 553 notice and comment procedures, the Secretary himself noted these and other parallels between this case and Levesque. S.R." }, { "docid": "3572222", "title": "", "text": "decision in order to preserve her rights to Additional as well as Basic TRA benefits. Plaintiff appealed the Deputy’s decision to the Maine Unemployment Insurance Commission, but decision by that body was delayed because of a motion to disqualify the hearing officer. Because of the delay this Court decided to proceed to resolve the issues before it. While the case was pending before the Commission, Maxine Taggart and Joan Norris moved to intervene in this case and •for class certification. Maxine Taggart also moved to intervene in the state proceedings on behalf of herself and a similarly situated class. Supp.Ex.U. Neither the motion for intervention in the state proceedings nor the appeal there had been decided by the time the briefs in this case were filed. The motions of Taggart and Norris to intervene in this case also remain to be decided. II. First or Last Separation Plaintiff argues that both the federal and state Defendants were bound by the Department of Labor regulations that remained in effect from 1975 until January 1987. Those regulations mandated that the eligibility period for TRA be calculated based on the applicant’s last separation from adversely affected employment. Specifically, Plaintiff asserts that she did not receive the benefits due her because the federal Defendants were enforcing an eligibility policy based on an applicant’s first separation from adversely affected employment which directly conflicted with their properly promulgated regulation. The state Defendants have argued that they only used the first separation standard because it was required by the federal Defendants. The federal defendants, in turn, argue that there remains no issue between them and Plaintiff because the Secretary has already determined that Maine did not violate its Trade Act agreement by using a worker’s last separation as the basis for TRA eligibility calculations after the 1981 OBRA amendments. As Plaintiff contends, an agency is bound by its own legislative regulations. United States v. Nixon, 418 U.S. 683, 694-96, 94 S.Ct. 3090, 3100-02, 41 L.Ed.2d 1039 (1974); see also, Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957). The Court is" }, { "docid": "3572226", "title": "", "text": "it. The Secretary held in his decision that “[u]ntil those final rules are published repealing or superseding the 1975 regulations, it was not unreasonable for Maine to continue to apply the ‘last separation’ rule for TRA eligibility.” Ex. X, at 9. The Court goes a step further to hold that with the regulation extant, and no clear statutory supercession, the agency and the state were required to follow it. As is evidenced by the divergent paths followed at different levels of the Maine administrative agency considering the issues, far too much uncertainty and waste of both state and federal governmental resources are generated by a system in which there are two conflicting rules and state agencies must choose between them. III.Mootness The federal Defendants also argue strenuously that Plaintiffs claims are moot because the Secretary has already determined that the use of last separation for the period before 1987 was permissible. The Court does not agree. First, Plaintiff was injured by the federal government’s enforcement of its first separation policy. Moreover, if the Court were not to decide Plaintiff’s federal claims and the State should decide to redetermine Plaintiff’s claim, the State could, based on the Secretary’s ruling, choose to apply the first separation standard, leaving Plaintiff without relief. IV.Exhaustion of Unemployment Insurance Although Plaintiff also challenged the Department of Labor’s definition of “exhaustion of unemployment insurance,” she has pointed out that the outcome to her is the same regardless of which issue is decided in her favor. Plaintiff’s Supplemental Brief on the Merits, at 3, n. 3. The Court will not, therefore, address the claims based on the federal Defendants’ definition of unemployment insurance. V.Administrative Finality and Res Judicata The State Defendants argue that Plaintiff should receive no relief in this Court because her claims are barred by the doctrines of res judicata and administrative finality. Plaintiff responds that the Court has already ruled that these doctrines will not apply. Plaintiff misreads the Court’s previous statement that it “finds no reason to explore questions of res judicata or finality with respect to the judgment rendered on Ms. Tyler’s individual" }, { "docid": "3572249", "title": "", "text": "Ex. Z at 10-11. . In fact, the agency was able to and did just that within a month following the administrative decision. See id. at 13. . As long ago as 1920 the Supreme Court stated: \"It is settled by many recent decisions of this court that a regulation by a department of government, addressed to and reasonably adapted to the enforcement of an act of Congress, the administration of which is confided to such department, has the force and effect of law if it be not in conflict with express statutory provision.” Maryland Casualty Co. v. United States, 251 U.S. 342, 349, 40 S.Ct. 155, 157-58, 64 L.Ed. 297 (1920). . The State Defendants’ complaint, when they were the Plaintiffs in the declaratory judgment action, makes plain the dilemma. It alleges: [I]f the Maine Department of Labor were to comply with the USDOL’s improper demand [to use an applicant’s first separation when determining TRA eligibility], any employees whose applications for TRA payments were denied based on their first date of separation would be able to obtain a reversal of that determination by appealing to the Commission. This would engender needless appeals. Even worse, it would create a highly unfair and unlawful double standard — whereby one rule would be applied to applicants who do not appeal from the denial of TRA payments and another rule would be applied to those who do appeal. Complaint, D.I. 1, ¶ 36. . Plaintiff was initially denied benefits on the basis of the Secretary’s first separation policy. Moreover, she did not receive a redetermination based on last separation, although the State had decided to redetermine cases like hers, because the federal Defendants threatened the State Defendants with severe penalties if they continued to use the lást separation standard. . In the intervenors' brief, counsel, who also represents Plaintiff, states that because the exhaustion issue gains no more for Plaintiff and the intervenors than does the last separation issue, Plaintiff assumes it to be unlikely that the Court will reach the exhaustion issue. Brief of Intervenors Maxine Taggart and Joan Norris, at 4" } ]

[ { "docid": "357786", "title": "", "text": "364, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). This court has identified several factors for consideration in determining whether a likelihood of confusion between two trademarks exists: (1) the type of mark, (2) the similarity of design, (3) the similarity of the product, (4) the identity of retail outlets and purchasers, (5) the similarity of advertising media used, (6) the defendant’s intent, and (7) actual confusion. John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 972 (11th Cir.1983); Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d 833, 890 (11th Cir.1983). The court does not have to consider all of these factors in every case and in some cases, “new” factors may merit consideration. “The real question is whether the court’s ultimate determination about the ‘likelihood of confusion’ was correct.” University of Georgia Athletic Association v. Laite, at 1543. In arriving at its conclusion that no likelihood of confusion existed in this case, the district court mentioned — but did not discuss — all of the factors mentioned above. The factors considered most important were set forth in the summary of findings and conclusions: 2. The SWATCH Watch name is not of sufficient strength to warrant the relief requested. [Citation omitted.] This conclusion is buttressed by the multiple “alphabetical” watches competing in the market. 3. Neither the general profile of the SWATCH Watch or the claimed marks are so similar to the T-WATCH as to give rise to consumer confusion____ Accordingly, there is no likelihood that consumers would confuse the T-WATCH with the SWATCH Watch. [Citation omitted.] 4. Swatch has failed to establish any secondary meaning. [Citation omitted.] After reviewing the record, we are convinced that the district court’s “ultimate determination about the likelihood of confusion” was not clearly erroneous. Although we agree with the district court that this is a “close case,” our conclusion that its findings are not clearly erroneous is well supported. The conclusion is buttressed by the fact that the district court considered factors, such as price and packaging, which are not mentioned in the above “test,” but which are clearly relevant in" } ]

[ { "docid": "23368692", "title": "", "text": "— no likelihood of confusion — so obviously supports entry of summary judgment against Welding Services on the claim for infringement of the stylized logo. IV. Likelihood of confusion is assessed by examining seven factors: (1) distinctiveness of the mark alleged to have been infringed; (2) similarity of the infringed and infringing marks; (3) similarity between the goods or services offered under the two marks; (4) similarity of the actual sales methods used by the two parties, such as their sales outlets and customer base; (5) similarity of advertising methods; (6) intent of the alleged infringer to misappropriate the proprietor’s good will; and (7) existence and extent of actual confusion in the consuming public. Conagra, Inc. v. Singleton, 743 F.2d 1508, 1514 (11th Cir.1984); see also Custom Mfg. & Eng’g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 646-47, 2007 WL 4165634, at *3 (11th Cir. Nov.21, 2007). The likelihood of confusion is a question of fact. Jellibeans, Inc. v. Skating Clubs, 716 F.2d 833, 840 n. 16 (11th Cir.1983). In this circuit, we are required to consider each of the seven factors. Dipin’ Dots, Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197, 1207 (11th Cir.2004). The stronger or more distinctive a trademark or service mark, the greater the likelihood of confusion and the greater the scope of protection afforded it, and conversely, the weaker the mark, the less protection it receives. See Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 259 (5th Cir.1980). While we decline to decide whether the logo was sufficiently distinctive to be protectable, we can say that at most the extent of stylization was marginal. The result is a weak mark, entitled to very little protection (if any). Star Indus., Inc. v. Bacardi & Co., 412 F.3d 373, 383 (2d Cir.2005). Visual comparison of the two logos shows that they are not similar. The WSI mark consists of stylized letters in an ordinary circle. The WTI mark consists of plain block letters with an orange “swoosh” design, meant to convey rotational movement, wrapping around the middle of the letters. The words “Welding Technologies," }, { "docid": "10292833", "title": "", "text": "to the central inquiry in an infringement case. Specifically, the court must determine “whether there is a ‘likelihood of confusion’ between the names and symbols used by the two parties.” Freedom Sav. and Loan Ass’n, 757 F.2d at 1179. In the Eleventh Circuit there are primarily seven factors to consider in deciding whether there is a likelihood of confusion. The factors include: 1) the type of mark at issue; 2) similarity of mark; 3) similarity of products or services; 4) identity of purchasers and similarity of retail outlets; 5) similarity of advertising campaigns; 6) the defendant’s intent; and 7) actual confusion. Id. at 1182-83. Rather than simply determining whether a majority of these factors indicate a likelihood of confusion, a court must “evaluate the weight to be accorded the individual factors and then make its ultimate decision.” AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1538 (11th Cir.1986) (analyzing the factors in the context of a trade dress infringement claim). In its ruling on the likelihood of confusion, a court is not required to specifically mention each of the seven factors in order to avoid reversal on appeal. Univ. of Georgia Athletic Ass’n v. Laite, 756 F.2d 1535, 1542 (11th Cir.1985) (analyzing the factors in the context of a claim of unfair competition). An analysis of fewer than all seven factors may support a finding of likelihood of confusion. Id. at 1543. In the Eleventh Circuit, the type of mark and evidence of actual confusion are the most important factors. Dieter, 880 F.2d at 326. 1. Type of Mark In analyzing the type of mark, a court must determine whether the mark is strong or weak in order to determine the level of protection to be extended to the mark. In Freedom Savings and Loan Association, the Eleventh Circuit explained: The more distinctive a plaintiffs service-mark, the greater the likelihood that consumers will associate the registered trademark and all similar marks with the registered owner. The law therefore provides the greatest protection to strong and distinctive servicemarks; the strength of a mark depends on the extent of third party usage" }, { "docid": "1382974", "title": "", "text": "sales during 1985 and 1986 to require an accounting of profits for both years. We agree. Tropical Attractions’ 1985 tax return is clearly sufficient proof of its sales during that year. Although the exact amount of infringing sales cannot be determined from the tax return, exactness is not required. Tropical Attractions is in the best position to ascertain exact sales and profits, and it bears the burden of doing so in an accounting. See Oral-B Laboratories, Inc. v. Mi-Lor. Corp., 810 F.2d 20, 26 (2nd Cir.1987) (reversing and remanding for an accounting even though exact sales figure not proven). Wesco is also entitled to an accounting for profits from infringing sales made during 1986. While Wesco did not produce any evidence of the amount of Tropical Attractions’ 1986 sales, it did introduce evidence of infringing sales activity. This evidence, when considered with evidence of Tropical Attractions’ 1985 sales is sufficient to require an accounting of 1986 profits. Again, only Tropical Attractions can ascertain exact sales and profits data for 1986. We therefore reverse the district court’s denial of an accounting and remand for determination of the profits Tropical Attractions derived from infringing sales during 1985 and 1986. C. Wesco also challenges the district court’s finding that the mark “Surfari” is not confusingly similar to Wesco's “Sun Fari.” Wesco contends that the district court failed to consider the full range of factors necessary to determine the likelihood of confusion and that when all the relevant factors are considered the court’s finding is clearly erroneous. To determine whether a mark is likely to cause confusion in violation of 15 U.S.C. § 1125(a), a court must consider a number of factors: (1) the nature of the plaintiff’s mark; (2) the similarity of the marks at issue; (3) the similarity of the products the marks represent; (4) the similarity of the parties’ retail outlets and customers; (5) the nature of the parties’ advertising; (6) the defendant’s intent; and (7) the extent of actual confusion. See Ambrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1538 (11th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 1983," }, { "docid": "7671096", "title": "", "text": "lettering, is decidedly non-functional. C. Confusingly Similar Having concluded that Stolichnaya’s trade dress is sufficiently distinctive and nonfunctional to merit protection, the balance the Court’s inquiry is into the likelihood of a purchaser being confused when confronted with the trade dress of Pesee’s Cristall Moscow. At the outset, the Court notes that evidence of actual confusion is not necessary to a finding of a likelihood of confusion; it is simply good proof of the likelihood of confusion. See E. Remy Martin & Co. v. Shaw-Ross Int’l Imports, 756 F.2d 1525, 1529 (11th Cir.1985). Instead, the evaluation turns on the following factors, no one of which is dispositive: (1) the strength of trade dress or mark; (2) the similarity between the designs at issue; (3) the similarity of the products; (4) the identity of retail outlets and purchasers; (5) the similarity of advertising media used; (6) the defendant’s intent; and (7) actual confusion. AmBrit, 812 F.2d at 1538; Conagra, Inc. v. Singleton, 743 F.2d 1508, 1514 (11th Cir.1984). An eighth factor may apply as well: the degree of care purchasers are likely to exercise when selecting products of the type sold by the parties. See Bauer, 941 F.2d at 1171. Since this eighth factor is widely used in other circuits, see Reed-Union, 869 F.Supp. at 1307, 1310, the Court will consider it as part of the test. 1. Strength of Trade Dress The niche-defining status of Stolieh-naya Cristall as the first ultra premium vodka is of some weight in assessing the strength of the Stoliehnaya Cristall dress. The undisputed evidence is that Stoliehnaya Cristall created this class of vodka in 1988. Between 1989 and 1994, Stoliehnaya Cristall sold approximately $55 million worth of its product at retail. Present sales approximate the same rate. The trade dress is heavily advertised in Carillon’s multi-million dollar advertisement campaign, and the Stoliehnaya line itself has been on the market for more than twenty years, during most of which time it was the exclusive Russian vodka imported into the United States. As noted above, the trade dress itself is also inherently distinctive. In light of these" }, { "docid": "21068141", "title": "", "text": "as to the proper origin of the services, such that a consumer is likely to believe that defendant’s services are being sold with the consent or authorization of plaintiff, or that defendant is affiliated with plaintiff. American United Life Insurance Co. v. American United Insurance Co., 731 F.Supp. 480, 481 (S.D.Fla.1990). On the other trademark infringement claims, a plaintiff-registrant must demonstrate (1) that its mark was used in commerce by defendant without consent of plaintiff, and (2) that this unauthorized use was likely to cause confusion or mistake, or to deceive. Burger King Corp. v. Mason, 710 F.2d 1480, 1491 (11th Cir.1983). See also 15 U.S.C. § 1114(l)(a). Also, it is well established that “falsely suggesting affiliation with the trademark owner in a manner likely to cause confusion as to source or sponsorship constitutes infringement.” Burger King, 710 F.2d at 1492 § 2, quoting Professional Golfers Ass’n of America v. Bankers Life & Casualty Co., 514 F.2d 665, 670 (5th Cir.1975). In determining whether a defendant’s use of a term creates a likelihood of confusion, courts look at seven factors: (1) the type of mark used; (2) the similarity of the mark; (3) the similarity of service; (4) the similarity of purchasers; (5) the similarity of advertising media used; (6) the existence of actual confusion; and (7) the defendant’s intent. Conagra, Inc. v. Singleton, 743 F.2d 1508, 1514 (11th Cir.1984). In the Eleventh Circuit, “the type of mark and evidence of actual confusion are the most important factors.” Dieter v. B & H Industries of Southwest Florida, Inc., 880 F.2d 322, 326 (11th Cir.1989), cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 332 (1990). Here, the parties stipulated that the “Winged Design” mark was a fanciful mark, and thus considered a strong mark, entitled to the highest level of protection (Doc. No. 53, pg.10). The parties dispute the level of protection accorded to “Eagle Iron,” with Plaintiffs urging that the mark is fanciful or arbitrary, and Defendant characterizing-the mark as the weaker “suggestive.” While the use of the term “iron” may, in itself, be suggestive of a solid" }, { "docid": "22975660", "title": "", "text": "known or unknown.” Id. The plaintiff may show secondary meaning in several ways. The plaintiff may show secondary meaning with consumer surveys and with evidence of lengthy and uniform display of the dress. See Conagra, Inc. v. Singleton, 743 F.2d 1508, 1513, 224 USPQ 552, 555-56 (11th Cir.1984). The plaintiff may also show secondary meaning with evidence of the plaintiffs efforts — usually through ad vertising — to establish in the minds of the consumers a connection between the trade dress and its product. See id. Finally, the plaintiff may use other evidence showing consumers’ association of the trade dress with the plaintiff or its product to prove secondary meaning. See id. Trade dress must also be primarily nonfunctional. A trade dress is functional “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article,” Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n. 10, 102 S.Ct. 2182, 72 L.Ed.2d 606, 214 USPQ 1, 4 n. 10 (1982), such that its protection would place a competitor at a significant disadvantage, see Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165, 115 S.Ct. 1300, 131 L.Ed.2d 248, 34 USPQ2d 1161, 1165 (1995). Trade dress protection also requires evidence of a likelihood of confusion between the plaintiffs and the defendant’s trade dress. Determining whether a likelihood of confusion exists requires weighing several factors: (1) the nature of the plaintiffs mark, (2) the similarity of the marks, (3) the similarity of the products the marks represent, (4) the similarity of the parties’ retail outlets and customers, (5) the similarity of the parties’ advertising, (6) the defendant’s intent to copy or imitate the plaintiffs mark, and (7) the extent of actual confusion. See Wesco Mfg., Inc. v. Tropical Attractions of Palm Beach, Inc., 833 F.2d 1484, 1488, 5 USPQ2d 1190, 1193-94 (11th Cir.1987). The jury found that VSI infringed Mag-nivision’s display card and blister pack trade dress, Magnivision’s color coding trade dress, and Magnivision’s eyeglass styles and colors trade dress. Each of these trade dresses requires separate analysis." }, { "docid": "2391081", "title": "", "text": "a mark confusingly similar to the Plaintiffs mark such that there was a likelihood of confusion as to the origin of the goods. See Conagra, Inc. v. Singleton, 743 F.2d 1508, 1512 (11th Cir.1984). The factors relevant to establishing a claim under 15 U.S.C. § 1125(a) are identical to the factors relevant to establishing the likelihood of confusion under 15 U.S.C. § 1114. See Ross Bicycles, Inc. v. Cycles USA, Inc., 765 F.2d 1502, 1503 (11th Cir.1985). In John A. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 972 (11th Cir. 1983), the court set forth the factors to be considered when analyzing whether there is a likelihood of confusion between the two marks: This court and the former Fifth Circuit have identified a number of factors which should be considered when analyzing whether there is a likelihood of confusion between two marks. Among the factors are ‘the type of trademark, the similarity of design, the similarity of the product, the identity of retail outlets and purchasers, the similarity of advertising media used, defendant's intent and actual confusion.’ Exxon Corp. v. Texas Motor Exchange, Inc., 628 F.2d 500, 504 (5th Cir.1980). This Court, however, does not acquiesce in the Defendants’ overall perspective on this seven-part test. The Defendants have focused on the initial sale of the watches at the flea market and have argued that with respect to the immediate transactions, there was no likelihood of confusion. This Court finds this view to be an example of statutory myopia. What occurs in the mind of a particular seller or in the mind of a single buyer within the narrow arena of a flea market is simply irrelevant to the real and broader inquiry required of a court faced with the task of determining liability in a trademark infringement case. “Commerce” is the key word in the statute and paramount to the very objectives of the law. In evaluating whether there has been a “likelihood of confusion,” courts must decide whether counterfeit goods have been injected into commerce or have become part of the interchange of goods in the market" }, { "docid": "10427066", "title": "", "text": "F.Supp. at 934. The following factors are highly relevant in deciding whether there is a likelihood of confusion: “(1) the type of mark' at issue; (2) similarity of marks; (3) similarity of product or services; (4) identity of purchasers and 'similarity of retail outlets; ---- (6) the defendant’s intent; ' and (7) actual confusion.” Ice Cold Auto Air, 828 F.Supp. at 935 (citing Freedom Sav. and Loan Ass’n, 757 F.2d at 1182-83). The Court, however, is not required to specifically mention each of these factors in making its decision. See Univ. of Georgia Athletic Ass’n v. Laite, 756 F.2d 1535, 1542 (11th Cir.1985) (analyzing the factors in the context of a claim of unfair competition). Rather than simply determining whether a majority of these factors indicate a likelihood of confusion, a court must “evaluate the weight to be accorded the individual factors and then make its ultimate decision.” Am-Brit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1538 (11th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987). An analysis of fewer than all seven factors may support a finding of likelihood of confusion. See Univ. of Georgia Athletic Ass’n, 756 F.2d at 1543. In the Eleventh Circuit, the type of mark and evidence of actual confusion are the most important factors. Dieter v. B & H Industries of Southwest Florida, Inc., 880 F.2d 322, 326 (11th Cir.1989), cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 332 (1990). In analyzing the type of mark, the Court must determine whether the mark is strong or weak in order to determine the level of protection to be extended to the mark. See Ice Cold Auto Air, 828 F.Supp. at 935. The more distinctive a. plaintiff’s service-mark, the greater the likelihood that consumers will associate the registered trademark and all similar marks with the registered owner. The law therefore provides the greatest protection to strong and distinctive servicemarks; the strength of a mark depends on the extent of third party usage and the relationship between the name and the service or good it describes. Freedom Sav. and Loan" }, { "docid": "23452886", "title": "", "text": "the trial court’s opinion, and the arguments by counsel on appeal leaves this Court with the definite conviction that the trial court committed a mistake by finding no likelihood of confusion. In a trademark infringement action, the plaintiff must show, first, that its mark is valid and, second, that the defendant’s use of the contested mark is likely to cause confusion. 15 U.S.C. § 1114(1)(a); Burger King Corp. v. Mason, 710 F.2d 1480,1491 (11th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984). Because Dieter’s mark is “incontestable” its validity is conclusively presumed, see infra, Part III, and accordingly the only factual issue for the trial court’s determination was whether B & H’s use of the “Shutterworld” mark was likely to cause confusion. Determination of likelihood of confusion requires analysis of the following seven factors: (1) type of mark, (2) similarity of mark, (3) similarity of the products the marks represent, (4) similarity of the parties’ retail outlets and customers, (5) similarity of advertising media used, (6) defendant’s intent and (7) actual confusion. Freedom Sav. and Loan Ass'n v. Way, 757 F.2d 1176, 1182 (11th Cir.1985), cert. denied, 474 U.S. 845, 106 S.Ct. 134, 88 L.Ed.2d 110 (1985); University of Georgia Athletic Ass’n v. Laite, 756 F.2d 1535 (11th Cir.1985); Wesco Mfg. v. Tropical Attractions of Palm Beach, 833 F.2d 1484, 1488 (11th Cir.1984); Sun Banks of Fla. v. Sun Fed. Sav. & Loan, 651 F.2d 311 (5th Cir.1981) . Of these factors, the type of mark and the evidence of actual confusion are the most important in this circuit. Freedom Sav., 757 F.2d at 1186. The trial court used this seven factor analysis and concluded that B & H’s use of the mark was not likely to cause confusion. Dieter challenges four specific points in the trial court’s opinion: (1) its finding that Dieter’s mark had not acquired secondary meaning, (2) its finding that the retail strategies of Dieter and B & H were not similar, (3) its finding that the businesses of Dieter and B & H were geographically separate, and (4) its finding" }, { "docid": "7022469", "title": "", "text": "v. A & A Fiberglass, Inc., 428 F.Supp. 689, 697 (N.D.Ga.1977). The court will consider plaintiff’s trademark and unfair competition claims in conjunction, except where indicated. In order to establish infringement under the trademark laws, the plaintiff must show the likelihood of confusion of some accused mark with its registered mark. 15 U.S.C. § 1114(l)(a). Armstrong Cork Co. v. World Carpets, Inc., 597 F.2d 496 (5th Cir.1979), cert. denied, 444 U.S. 932, 100 S.Ct. 277, 62 L.Ed.2d 190 (1979). As originally drafted, § 1114(l)(a) required a finding of confusion or deception by “purchasers as to the source of origin of such goods or services.” This clarifying language was eliminated in 1962. Fuji Photo Film Co., Inc. v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591, 594 (5th Cir.1985); Rolls-Royce, 428 F.Supp. at 694 n. 10. The Eleventh and Fifth Circuits have interpreted § 1114(1) as presently requiring the plaintiff to demonstrate a likelihood of consumer confusion as to either origin, approval, endorsement or other association of the defendant’s mark with the plaintiff. See Supreme Assembly, Order of Rainbow for Girls v. J.H. Ray Jewelry Co., 676 F.2d 1079, 1082 (5th Cir.1982); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 388 (5th Cir.1977). In determining whether such a likelihood of confusion exists, courts examine several factors: (a) type of trademark, that is, the strength of the prior owner’s mark; (b) degree of similarity between the two marks; (c) similarity between the two products; (d) identity of retail outlets and purchasers; (e) identity of advertising media utilized; (f) defendant’s intent; (g) actual confusion. See Jellibeans, 716 F.2d at 840; Fuji Photo, 754 F.2d at 595. The court will address each of these factors in turn. Type of Trademark: Strong marks are more likely to be protected than weak marks. See John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 973 (11th Cir.1983). The defendant does not challenge the validity of the plaintiff’s registered trademarks, and the court finds that the plaintiff’s marks are strong, distinctive, and well-known designations for plaintiff’s goods. Similarity of Design: As will be discussed" }, { "docid": "21185516", "title": "", "text": "have considered in calculating its $2.6 million verdict, we are unable to say that the entirety of that verdict was unsupported. However, absent the impermissibly speculative damages claimed for lost royalties, the award could not have reached $2.6 million. Accordingly, we reverse the court’s judgment as a matter of law reducing the damages to $1, but we decline to reinstate the jury’s verdict. 3. Trademark Infringement Aronowitz also appeals the district court’s denial of his motion for judgment as a matter of law on the trademark infringement counterclaim. A successful cause of action for trademark infringement requires the evidence to establish that the infringer 1) used the mark in commerce, without consent; and 2) that the use was likely to cause confusion. John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 972 (11th Cir.1983). Aronowitz does not contest the allegation that he used the shorter mark “Health-Chem” on his company’s website, but argues that Health-Chem “did not and cannot show a likelihood of confusion.” Appellant’s Br. at 51. We have recognized seven factors to be considered as to the likelihood of confusion: (1) type of mark; (2) similarity of mark; (3) similarity of the products the marks represent; (4) similarity of the parties’ retail outlets and customers; (5) similarity of advertising media; (6) defendant’s intent; and (7) actual confusion. Frehling Enters, v. Int’l Select Group, Inc., 192 F.3d 1330, 1335 (11th Cir.1999). “Of these, the type of mark and the evidence of actual confusion are the most important.” Id. There are four recognized types of mark, ranging from weakest to strongest: generic, descriptive, suggestive and arbitrary. Id. “The stronger the mark, the greater the scope of protection accorded it.” Id. A mark’s strength is enhanced where there is little or no third-party use of that mark. Id. at 1336. With regard to actual confusion, we have specifi cally accorded “substantial weight” to evidence that actual customers were confused by the use of a mark as opposed to other categories of people. Safeway Stores, Inc. v. Safeway Disc. Drugs, 675 F.2d 1160, 1167 (11th Cir.1982). Here, the parties apparently" }, { "docid": "1047886", "title": "", "text": "prevail on its Lanham Act claim, and the district court did not err in granting injunctive relief to UGAA under section 43(a) despite the absence of proof of secondary meaning. B. Whether the District Court Used the Wrong Factors in Comparing the “Battlin’ Bulldog” with the “University of Georgia Bulldog” Laite’s next argument is that the district court used the wrong factors in comparing the “Battlin’ Bulldog” with the “University of Georgia Bulldog.” Laite correctly points out that this circuit has recognized seven factors as relevant to the determination of a “likelihood of confusion” between two trade or service marks: (1) the type of mark at issue, (2) the similarity of design between the two marks, (3) the similarity of product, (4) the identity of retail outlets and purchasers, (5) the identity of advertising media utilized, (6) the defendant’s intent, and (7) actual confusion between the two marks. See Roto-Rooter Corp. v. O’Neal, 513 F.2d 44, 45 (5th Cir. 1975); accord, Conagra, Inc. v. Singleton, 743 F.2d 1508, 1514 (11th Cir.1984); Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d 833, 840 (11th Cir.1983); Safeway Stores, Inc., 675 F.2d at 1164; Sun-Fun Products, Inc. v. Suntan Research & Development Inc., 656 F.2d 186, 189 (5th Cir. Unit B 1981); Sun Banks of Florida, Inc., 651 F.2d at 314; Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 259 (5th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980). According to Laite, the court below erred by failing to consider all seven of the relevant factors before deciding that the sale of “Battlin’ Bulldog Beer” created a “likelihood of confusion.” The difficulty with this argument is twofold. First, we are not convinced, after examining the record and the orders entered by the district court, that the court failed to consider all seven of the relevant factors. At the preliminary injunction hearing, counsel for Laite discussed at length the seven factors, as set out in the Amstar Corp. case. Moreover, in the order granting the preliminary injunction, the district court cited Amstar Corp. and specifically mentioned two" }, { "docid": "10292840", "title": "", "text": "628 F.2d 500, 505 (5th Cir.1980). The parties have represented to the Court that their products and services are virtually identical. 4. Identity of Purchasers and Similarity of Retail Outlets “Likelihood of confusion is more probable if the products are sold through the same channels to the same purchasers.” AmBrit, Inc., 812 F.2d at 1541. The parties appear to agree that the purchasers and retail outlets are very similar. 5. Similarity of Advertising Campaigns “If a plaintiff and defendant both use the same advertising media, a finding of likelihood of confusion is more probable.” AmBrit, Inc., 812 F.2d at 1542. A court may properly consider the overall advertising campaigns. Freedom Sav. and Loan Ass’n., 757 F.2d at 1185. Defendants argue that ICAA has recently used certain methods of advertising that have served to increase confusion regarding the parties’ services. However, the Court finds that the methods of advertising used by both ICAA and Defendants are entirely predictable and ordinary for the type of services offered. The parties now use, and may be expected to use in the future, virtually identical advertising media. 6. Defendant’s Intent A finding that a defendant adopted a mark with the intent of deriving benefit from the reputation of a plaintiffs service or product may alone be enough to justify an inference that there is confusing similarity. AmBrit, Inc., 812 F.2d at 1542. Evidence that a defendant intended to come as close to plaintiffs mark as the law would allow may support an inference that a defendant intended to trade on the good will associated with plaintiffs mark. John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 977-78 (11th Cir.1983). Athough intent may be inferred, the actions of defendant must clearly indicate an effort by the defendant to confuse the public. Holiday Inns, Inc. v. Holiday Out in America, 481 F.2d 445, 449 (5th Cir. 1973). Without clear evidence of intent, a plaintiffs argument may become circular. [The plaintiff] argues that confusing similarity of the marks is proved by the defendants’ intent to confuse the public and that the defendants’ intent to confuse the" }, { "docid": "7022470", "title": "", "text": "of Rainbow for Girls v. J.H. Ray Jewelry Co., 676 F.2d 1079, 1082 (5th Cir.1982); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 388 (5th Cir.1977). In determining whether such a likelihood of confusion exists, courts examine several factors: (a) type of trademark, that is, the strength of the prior owner’s mark; (b) degree of similarity between the two marks; (c) similarity between the two products; (d) identity of retail outlets and purchasers; (e) identity of advertising media utilized; (f) defendant’s intent; (g) actual confusion. See Jellibeans, 716 F.2d at 840; Fuji Photo, 754 F.2d at 595. The court will address each of these factors in turn. Type of Trademark: Strong marks are more likely to be protected than weak marks. See John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 973 (11th Cir.1983). The defendant does not challenge the validity of the plaintiff’s registered trademarks, and the court finds that the plaintiff’s marks are strong, distinctive, and well-known designations for plaintiff’s goods. Similarity of Design: As will be discussed later, the evidence demonstrates that defendant intended that its mark Garbage Pail Kids be similar in design to plaintiff’s marks. While there are differences between the marks, their overall similarity is clearly apparent in many respects. Both product names are displayed in an arc against a white cloud background. Cabbage Patch Kids and Garbage Pail Kids both contain three words. Each mark has the same number of syllables with the same stress pattern. The “C” of Cabbage and the “G” of Garbage are phonetically similar in that they are both velar plosives. Pail and Patch both begin with the letter “P”. The last word in both marks is identical. Such a sight, sound, and meaning similarity between a plaintiff’s and a defendant’s marks has often resulted in a finding that the two marks are likely to confuse. See generally 2 J.T. McCarthy, Trademarks and Unfair Competition § 23:4 passim (1973). Similarity of Product: The parties’ primary products, dolls and stickers, are not similar. However, defendant’s licensed products are similar and can compete with plaintiff’s licensed" }, { "docid": "23024058", "title": "", "text": "plaintiff’s proof on this issue was so strong that any finding other than one of likely confusion would be clearly erroneous. Therefore, we decide the issue. Likelihood of confusion for purposes of § 43(a) of the Lanham Act is determined by analysis of a number of factors, including: (1) the strength of the plaintiff’s mark; (2) the similarity between the plaintiff’s mark and the allegedly infringing mark; (3) the similarity between the products and services offered by the plaintiff and defendant; (4) the similarity of the sales methods, i.e., retail outlets or customers; (5) the similarity of advertising methods; (6) the defendant’s intent, e.g., does the defendant hope to gain competitive advantage by associating his product with the plaintiff’s established mark; and (7) the most persuasive factor on likely confusion is proof of actual confusion. See, e.g., Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d at 739-46. We find that the similarity between the Singleton mark and the defendant’s business name, Singleton Shrimp Boats, and, most persuasively, the proof that Conagra offered on actual confusion compelled a fact finding of likely confusion. a. Similarity of the Marks The distinctive aspect of the defendant’s business name, Singleton Shrimp Boats, is the name Singleton, which of course is identical to the plaintiff’s mark. See, e.g., Safeway Stores, Inc. v. Safeway Discount Drugs, Inc., 675 F.2d 1160, 1165-66 (11th Cir.1982) (the business name “Safeway Discount Center” or “Drugs” was found to infringe the trade name “Safeway; ” the words “Discount Center” or “Discount Drugs” were found to be merely descriptive). The Singleton name is set out, apart from the words “Shrimp Boats,” on all of the defendant’s trucks, signs, media advertising, and business cards. We have no trouble concluding that the defendant has adopted a business name confusingly similar to the plaintiff’s mark. Cf. Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d at 841-42 (trade names “Jellibeans” and “Lollipops” were found to be confusingly similar); John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 975-76 (11th Cir.1983) (upholding lower court’s finding that names “Memory Stub” and “Entry" }, { "docid": "11539382", "title": "", "text": "Therefore, DDI’s product design is not subject to trade dress protection. Accordingly, summary judgment in favor of FBD was proper. B. Trade dress infringement of DDI’s logo “The touchstone test for a violation of § 43(a) is the likelihood of confusion resulting from the defendant’s adoption of a trade dress similar to the plaintiffs.” AmBrit, 812 F.2d at 1538 (internal quotations omitted). In determining whether a likelihood of confusion exists, the fact finder evaluates a number of elements including [the following seven factors]: the strength of the trade dress, the similarity of design, the similarity of the product, the similarity of retail outlets and purchasers, the similarity of advertising media used, the defendant’s intent, and actual confusion. The issue of likelihood of confusion is not determined by merely analyzing whether a majority of the subsidiary factors indicates that such a likelihood exists. Rather, a court must evaluate the weight to be accorded the individual factors and then make its ultimate decision. The appropriate weight to be given to each of these factors varies with the circumstances of the case. Id. (internal citations omitted). DDI argues that the district court erred because it considered only the similarity of the designs rather than all seven factors. We agree. The “extent to which two marks are confusingly similar cannot be assessed without considering all seven factors to ensure that the determination is made in light of the totality of the circumstances.” Wesco Mfg., Inc. v. Tropical Attractions of Palm Beach, Inc., 833 F.2d 1484, 1488-89 (11th Cir.1987) (holding that the court committed reversible error when it “focused solely on the degree of visual similarity between the two marks”). However, a “district court’s failure to consider all the factors relevant to the issue of whether two marks are confusingly similar does not necessarily constitute reversible error.” Id. at 1489. Due to the applicable de novo standard of review in this case, this court may analyze the remaining six factors. After reviewing the record in the light most favorable to DDI, as the non-movant, we conclude that the remaining six factors all weigh in favor" }, { "docid": "10292832", "title": "", "text": "has also provided some anecdotal evidence that consumers consciously connect the marks with its business. Although the parties may, over time, refine and expand their evidence on these issues, at this point it appears to the Court that ICAA is likely to. be able to establish at trial that its marks are descriptive with secondary meaning. There is one additional threshold issue raised by Defendants. The Fifth Circuit has noted that “two marks must bear some threshold resemblance in order to trigger inquiry into extrinsic factors, but this threshold is considerably lower than the degree of similarity required where the plaintiff presents little or no evidence on extrinsic factors supporting infringement.” Sun-Fun Products, Inc. v. Suntan Research & Development, Inc., 656 F.2d 186, 189 (5th Cir.1981). As the analysis set forth below will demonstrate, the threshold level of similarity required to trigger inquiry into the other factors was satisfied here. b. Likelihood of Confusion Once the threshold question of whether the mark is distinctive enough to deserve protection is answered affirmatively, the court must turn to the central inquiry in an infringement case. Specifically, the court must determine “whether there is a ‘likelihood of confusion’ between the names and symbols used by the two parties.” Freedom Sav. and Loan Ass’n, 757 F.2d at 1179. In the Eleventh Circuit there are primarily seven factors to consider in deciding whether there is a likelihood of confusion. The factors include: 1) the type of mark at issue; 2) similarity of mark; 3) similarity of products or services; 4) identity of purchasers and similarity of retail outlets; 5) similarity of advertising campaigns; 6) the defendant’s intent; and 7) actual confusion. Id. at 1182-83. Rather than simply determining whether a majority of these factors indicate a likelihood of confusion, a court must “evaluate the weight to be accorded the individual factors and then make its ultimate decision.” AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1538 (11th Cir.1986) (analyzing the factors in the context of a trade dress infringement claim). In its ruling on the likelihood of confusion, a court is not required to specifically" }, { "docid": "2391080", "title": "", "text": "apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, áhall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false designation or representation. To prevail on a false designation of origin claim under 15 U.S.C. § 1125(a), the Plaintiff must establish that the Defendant adopted a mark confusingly similar to the Plaintiffs mark such that there was a likelihood of confusion as to the origin of the goods. See Conagra, Inc. v. Singleton, 743 F.2d 1508, 1512 (11th Cir.1984). The factors relevant to establishing a claim under 15 U.S.C. § 1125(a) are identical to the factors relevant to establishing the likelihood of confusion under 15 U.S.C. § 1114. See Ross Bicycles, Inc. v. Cycles USA, Inc., 765 F.2d 1502, 1503 (11th Cir.1985). In John A. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 972 (11th Cir. 1983), the court set forth the factors to be considered when analyzing whether there is a likelihood of confusion between the two marks: This court and the former Fifth Circuit have identified a number of factors which should be considered when analyzing whether there is a likelihood of confusion between two marks. Among the factors are ‘the type of trademark, the similarity of design, the similarity of the product, the identity of retail outlets and purchasers, the similarity of advertising media used, defendant's" }, { "docid": "2998653", "title": "", "text": "that the right to use such mark is possessed by HJCI because the Plaintiffs’ use of HJ infringes HJCI’s registered “Howard Johnson’s” mark. HJCI is the undisputed owner of the “Howard Johnson’s” mark for motor lodges. The use of “HJ” in the name of a motor lodge, and in the name of a plaza associated with a motor lodge, is the use of a colorable imitation of “Howard Johnson’s” and is likely to cause confusion, rendering use of those initials for those purposes a violation of 15 U.S.C. § 1114(l)(a). The Court finds that there is, on the facts of this case, a strong likelihood of confusion between “Howard Johnson’s” and “HJ”. The Eleventh Circuit has articulated certain factors, which may be considered along with other factors, in determining the likelihood of confusion. Wesco Mfg., Inc. v. Tropical Attractions of Palm Beach, Inc., 833 F.2d 1484, 1488 (11th Cir.1987); Swatch Watch, S.A. v. Taxor, Inc., 785 F.2d 956, 958 (11th Cir.1986); Remy Martin, 756 F.2d at 1530-1533. The Court determines the applicable factors as follows: (1) Type of Mark: Due to extensive advertising and long use, “Howard Johnson’s” must be considered a strong mark. Remy Martin, 756 F.2d at 1533. Furthermore, it is in-contestible. (2) Similarity of Design of Marks: In making this determination, a court must examine the overall impression created by the marks, including appearance, sound, meaning and manner of display. Remy Martin, 756 F.2d at 1531. Here, “HJ” is an obvious abbreviation of Howard Johnson’s, and its meaning is Howard Johnson’s. HJCI often uses this abbreviation to designate its hotels. The Plaintiffs use the same colors used by HJCI in many places. Therefore, the marks are quite similar. (3) Similarity of Product: The services offered by HJCI and Plaintiffs are identical and are clearly the sort that the public attributes to a single source. (4) Identity of Retail Outlets and Purchasers: While motor lodge services are always sold at separate locations, the services of Plaintiffs are sold from a building that appears to be a Howard Johnson’s. Furthermore, the targeted purchasers are the same. (5) Similarity of" }, { "docid": "1382975", "title": "", "text": "court’s denial of an accounting and remand for determination of the profits Tropical Attractions derived from infringing sales during 1985 and 1986. C. Wesco also challenges the district court’s finding that the mark “Surfari” is not confusingly similar to Wesco's “Sun Fari.” Wesco contends that the district court failed to consider the full range of factors necessary to determine the likelihood of confusion and that when all the relevant factors are considered the court’s finding is clearly erroneous. To determine whether a mark is likely to cause confusion in violation of 15 U.S.C. § 1125(a), a court must consider a number of factors: (1) the nature of the plaintiff’s mark; (2) the similarity of the marks at issue; (3) the similarity of the products the marks represent; (4) the similarity of the parties’ retail outlets and customers; (5) the nature of the parties’ advertising; (6) the defendant’s intent; and (7) the extent of actual confusion. See Ambrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1538 (11th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987); Conagra, Inc. v. Singleton, 743 F.2d 1508, 1514 (11th Cir.1984); Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d 833, 840 (11th Cir.1983). The extent to which two marks are confusingly similar cannot be assessed without considering all seven factors to ensure that the determination is made in light of the totality of the circumstances. Here, however, the district court ignored six of the seven factors. In finding that “Surfari” is not confusingly similar to “Sun Fari” the court stated: [T]he word “Surfari” is not bifurcated as is “Sun Fari” in plaintiff’s exhibits 3 and 6. No internal upper case letters are used in [“Surfari”]. The script in [“Surfari”] is noticeably different from that used in [“Sun Fari”]. As it appears in plaintiffs exhibit 19, the “Surfari” mark is not substantially different from the word “safari,” with which pith helmets are commonly associated. The court incorrectly focused solely on the degree of visual similarity between the two marks. “Equally as significant as the general appearance of the trademarks is their" } ]

[ { "docid": "23074945", "title": "", "text": "concepts of the Fifth and Fourteenth Amendments. Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959); see also Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915) (“the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure”); Cowan v. Corley, 814 F.2d 223, 227 (5th Cir.1987). “[T]he Constitution only protects this liberty from state actions that threaten to deprive persons of the right to pursue their chosen occupation. State actions that. exclude a. person from one particular job are not actionable in suits ... brought directly under thé due process clause.” Bernard v. United Township High Sch. Dist. No. 30, 5 F.3d 1090, 1092 (7th Cir.1993). “ ‘It is the liberty to pursue a calling or occupation, and not the right to a specific job, that is secured by the Fourteenth Amendment.’ ” Id. (quot ing Wroblewski v. City of Washburn, 965 F.2d 452, 455 (7th Cir.1992)). In Cowan, the United States Court of Appeals for the Fifth Circuit considered a case in which a wrecking company had alleged a property or liberty interest because the local sheriff, in disregard of a service call list, gave certain wrecker companies preferential treatment in the assignment .of calls. After complaining to the sheriff, the plaintiff was expelled from the wrecker association and was therefore barred from receiving further county business. Although it concluded there was probably no property interest, the court of appeals held that the district court should have considered whether a liberty interest existed. Cowan, 814 F.2d at 228. The court of appeals expressed no opinion on the existence of any liberty interest but simply reversed the district court’s order granting dismissal of the section 1983 complaint for failure to state a claim and remanded it to consider, in the first instance, whether the complaint alleged a protected liberty interest. Id. at 227-28. There are at least two other district court cases" } ]

[ { "docid": "13518795", "title": "", "text": "of a protected liberty interest. The majority dismisses Linan-Faye’s claim rather summarily, overlooking precedent which would, in my view, require reversal. The right to follow a chosen profession free from unreasonable interference comes within both the liberty and property concepts of the Fifth and Fourteenth Amendments. See Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411-12, 3 L.Ed.2d 1377 (1959); Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1259 (3d Cir.1994); Bernard v. United Township High Sch. Dist. No. 30, 5 F.3d 1090, 1092 (7th Cir.1993). It is true that the Constitution protects only the right “to pursue a calling or occupation, and not the right to a specific job.” Bernard, 5 F.3d at 1092 (quoting Wroblewski v. City of Washburn, 965 F.2d 452, 455 (7th Cir.1992)). Nevertheless, the majority and the sole case on which it relies, S & D Maintenance Co. v. Goldin, 844 F.2d 962 (2d Cir.1988), fail to consider how disputes over specific jobs can, under certain circumstances, affect a party’s pursuit of its occupation. In S & D, although the Court of Appeals for the Second Circuit framed the § 1983 claim as one challenging the plaintiffs dismissal from government employment, which clearly did not rise to a constitutional violation, the true basis of the plaintiffs liberty claim was that New York City’s refusal to pay amounts already due had essentially forced the company out of business and left it “tottering near bankruptcy, unable to get work, as a direct result of the city’s alleged breach of the contracts and withholding of payments.” S & D, 844 F.2d at 970. While I believe that S & D may be in error to the extent it denies that the plaintiffs claim implicated a protected liberty interest, the instant case provides an even stronger claim. Whereas the city defendant in S & D could argue that the plaintiff was not entitled to the amounts that it alleged it had already earned, HACC cannot make any such argument about its (arguably unjustified) failure to return Linan-Faye’s own performance bond. Also, when HACC interfered with Linan-Faye’s (pre-existing)" }, { "docid": "13518794", "title": "", "text": "has so consistently supported liberal awards of contract damages, would countenance that result, especially in the fact scenario at bar. This conclusion is strongly buttressed by the scathing criticism that has been levied at Tomcello and the cognate jurisprudence. See, e.g.,. Stephen N. Young, Note, Limiting the Government’s Ability To Terminate for Convenience Following Tornecello, 52 Geo. Wash.L.Rev. 892 (1984) (suggesting that the Tomcello decision provides a reason to eliminate the government’s ability to terminate for convenience entirely). Because I do not believe that the New Jersey Supreme Court would adopt the federal interpretation but would instead continue to give exculpatory clauses such as the termination for convenience clause only narrow — if any — effect, I dissent. II. The § 1983 Claim I also dissent from the majority’s affir-mance of the summary judgment granted on Linan-Faye’s § 1983 claim. While I agree that Linan-Faye’s interest in the contract did not rise to a property interest protected by the Constitution, I cannot agree that HACC’s unjustified retention of Linan-Faye’s performance bond did not deprive Linan-Faye of a protected liberty interest. The majority dismisses Linan-Faye’s claim rather summarily, overlooking precedent which would, in my view, require reversal. The right to follow a chosen profession free from unreasonable interference comes within both the liberty and property concepts of the Fifth and Fourteenth Amendments. See Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411-12, 3 L.Ed.2d 1377 (1959); Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1259 (3d Cir.1994); Bernard v. United Township High Sch. Dist. No. 30, 5 F.3d 1090, 1092 (7th Cir.1993). It is true that the Constitution protects only the right “to pursue a calling or occupation, and not the right to a specific job.” Bernard, 5 F.3d at 1092 (quoting Wroblewski v. City of Washburn, 965 F.2d 452, 455 (7th Cir.1992)). Nevertheless, the majority and the sole case on which it relies, S & D Maintenance Co. v. Goldin, 844 F.2d 962 (2d Cir.1988), fail to consider how disputes over specific jobs can, under certain circumstances, affect a party’s pursuit of its occupation. In S & D," }, { "docid": "13518797", "title": "", "text": "capacity to obtain large construction contracts, the core of its business, it brought this case into close resemblance to those cases where the state actors are held liable under § 1983 for revoking or interfering substantially with a person’s license to pursue a chosen occupation. Cf. Herz v. Degnan, 648 F.2d 201 (3d Cir.1981) (finding violation of a property interest in the revocation of a professional license). Without the use of its bonding line, Linan-Faye was paralyzed: It could not bid on any significant contracts and thus could not replace the business lost through the government’s breach. Hence, because HACC’s arguably unjustified retention of the bond did impinge on protected liberty interests, the district court erred by awarding the defendant summary judgment on this claim. I therefore also dissent from the portion of the majority opinion that affirms this ruling. Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE, SAROKIN and GARTH , Circuit Judges. . I take no position on Parts VLB through F and VIII of the majority opinion, as they are outside the ambit of this effort, except to note that the discussion of HACC’s delay in invoking the termination for convenience clause, see Part VIII, supports my views insofar as it highlights the dubiousness of HACC’s ex post reliance thereon. . As my discussion explains, I believe that this result would follow even if New Jersey were to look to federal law, for I do not think New Jersey would read federal law so expansively as does the majority. SUR PETITION FOR REHEARING March 13, 1995 The petition for rehearing filed by appellant having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied." }, { "docid": "13518757", "title": "", "text": "obligations by informing HUD, and obtaining from HUD a general approval for the termination of the contract. Because HACC received general HUD approval to terminate, there is no bar to this court’s using the constructive termination for convenience doctrine to convert this into a termination for convenience by operation of law. Further, and most importantly, there is simply no dispute as to the material facts of what approval HACC obtained. Indeed, both parties concede that HACC obtained HUD approval to terminate generally, but did not obtain specific HUD approval of a termination for convenience. Therefore, this cannot be a disputed factual issue as Linan-Faye erroneously contends. Accordingly, we will reverse the district court’s grant of summary judgment and remand for trial on the issues of: (1) the definition of “work performed” under paragraph 17 of the contract; (2) the pre-termination expenses incurred by Linan-Faye that are compensable as “work performed” under the termination for convenience clause; and (8) HACC’s possible liability for damages resulting from its retaining Linan-Faye’s bond after termination. VII. SECTION 1983 Linan-Faye next asserts that the district court erred in granting summary judgment against it on its claim under 42 U.S.C. § 1983. Linan-Faye argues it has a protectible property interest in its contract with HACC that is entitled to Fourteenth and Fifth Amendment protection. Further, Li-nan-Faye contends that HACC’s retention of its performance bond implicates a liberty interest entitled to constitutional protection. In granting summary judgment, the district court held that whatever property interest Linan-Faye may have had, it does not rise to a sufficient level of certainty or dependency to merit constitutional protection. Linan-Faye Construction Co. v. Housing Authority of Camden, 797 F.Supp. 376, 380 (D.N.J.1992). We agree with the district court’s resolution of this matter. This Court recently surveyed the law concerning Fourteenth Amendment claims based on contracts with state entities. Unger v. National Residents Matching Program, 928 F.2d 1392 (3d Cir.1991). We stated in Unger that it is beyond dispute today that a contract with a state entity can give rise to a property right protected under the Fourteenth Amendment. Id. at 1397" }, { "docid": "13518749", "title": "", "text": "for convenience clause). Although, on the whole, the evidence produced by Linan-Faye in this certification appears meager, by granting summary judgment for HACC the district court improvidently prevented the plaintiff from developing the record more fully. There was not a complete lack of evidence. Accordingly, we must reverse the grant of summary judgment on this issue and remand for trial. In remanding for trial on this issue, however, it is important to explain precisely the scope of our holding. We do not hold that Linan-Faye is entitled to pre-termination expenses that accrued as the result of any alleged pre-termination breaches of contract by HACC. As the district court correctly held, eases that have addressed the issue of pre-termination breaches have concluded that claims for such damages are subsumed in the termination for convenience clause. Linan-Faye Construction Co., 847 F.Supp. at 1203, 1204 (citing Nolan Brothers, Inc. v. United States, 405 F.2d 1250, 186 Ct.Cl. 602 (1969)); Descon System Ltd. v. United States, 6 Cl.Ct. 410 (1984)). Pre-termination expenses that accrued as the result of any alleged pre-termination breaches by HACC are not compensable. On remand, the triable issue is limited to a determination of the pre-termination expenses which Linan-Faye incurred that the parties intended to be com-pensable as “work performed” under the termination for convenience clause of the contract. C. Why HACC Retained Linanr-Faye’s Performance Bond Linan-Faye next contends that the trial court improperly resolved a factual dispute as to why HACC retained Linan-Faye’s performance bonds after terminating Linan-Faye. According to Linan-Faye, it is entitled to damages arising from HACC’s failure to return this performance bond. Linan-Faye alleges that by retaining its bond, HACC prevented it from accepting other construction contracts and used the bond as an inducement to force Linan-Faye to accept an unreasonable resolution of this dispute. HACC argues that it retained Linan-Faye’s performance bond because Linan-Faye instituted a suit seeking specific performance and if Linan-Faye were successful, HACC would need Linan-Faye’s bond. This issue is not resolved solely by reference to the termination for convenience clause because the events that give rise to this claim occurred after" }, { "docid": "13518752", "title": "", "text": "1205 n. 16. Therefore, the court reasoned, “[t]he decision of the HACC to depart from Mr. Kern’s original plan only supports [the] finding that HACC felt compelled to hold onto the bonds until the Court had disposed of plaintiffs claims for specific performance.” Id. (emphasis added). The court in this passage, however, merely assumes its conclusion. What eludes the district court is any evidence indicating that it was the suit for specific performance that caused retention of the bond. In effect, what the district court stated is that the decision of HACC to depart from Kern’s original plan supports HACC’s decision to depart from Kern’s original plan — a statement without significance. Moreover, even taking HACC’s view of the timing of the relevant events, there was an unjustified gap of over one month between the time HACC terminated Linan-Faye and the time Linan-Faye served its complaint seeking specific performance. According to HACC, after it issued its September 25, 1990 letter of termination, Linan-Faye -sought reversal of HACC’s decision to terminate. HACC states that it sent a letter to Linan-Faye on October 23,1990 confirming its decision to terminate. Linan-Faye did not serve its complaint for specific performance until early in December of 1990, however, and the bond had not yet been returned. This unex-eused delay strengthens Linan-Faye’s argument that HACC did not decide to hold onto the performance bond as the result of the specific performance suit. In light of these facts, we will reverse the district court’s grant of summary judgment for HACC and remand for trial on this disputed issue. D. Whether Linan-Faye “Refused” to Begin Work Linan-Faye asserts that the district court improperly found it “refused” to begin work. According to Linan-Faye, it did not refuse to begin work, but merely wanted to agree on any changes that HACC desired before it began construction. Linan-Faye contends that there, is no basis in the record for the district court’s finding that it flatly refused to begin work. We find that the question of whether Li-nan-Faye flatly refused to begin work is immaterial to this case. Whether Linan-Faye actually “refused”" }, { "docid": "13518741", "title": "", "text": "considered sufficiently changed circumstances to allow government to terminate for convenience); see also SMS Data Products, 19 Cl.Ct. at 621 (genuine concern that contractor could not meet the contract’s mandatory requirements constituted changed circumstances). Without establishing a litmus test as to what constitutes changed circumstances, which is unnecessary in view of subsequent limits on Torncello, we hold that New Jersey courts, looking to federal law as persuasive authority, would permit HACC to invoke the constructive termination for convenience doctrine in this instance. Accordingly, damages will be limited by the termination for convenience clause of the contract. VI. COMPENSATION IN LIGHT OF THE TERMINATION FOR CONVENIENCE CLAUSE Having determined that the termination for convenience clause is applicable in this case, we must next decide whether the district court erred in granting summary judgment for HACC and denying Linan-Faye all compensation'. Linan-Faye contends that the district court exceeded its role at the summary judgment stage because there still remain six contested issues concerning its contract claim. According to Linan-Faye, the district court erred in determining: (1) the definition of “work performed” under the contract; (2) there was no evidence of com-pensable pre-termination expenses under the contract; (3) the reason why HACC retained Linan-Faye’s performance bond; (4) that Li-nan-Faye “refused” to begin work; (5) that Linan-Faye misunderstood the contract specifications; and (6) that there was proper HUD approval of the contract’s termination. Our scope of review is plenary in determining the propriety of summary judgment. Oritani Savings & Loan Ass’n v. Fidelity & Deposit Co., 989 F.2d 635, 637 (3d Cir.1993). Summary judgment is proper only “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.” . Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Further, at the summary judgment stage, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether" }, { "docid": "13518712", "title": "", "text": "OPINION OF THE COURT COWEN, Circuit Judge. Linan-Faye Construction Company Co., Inc. (“Linan-Faye”), a public housing contractor, appeals from orders of the district court that granted summary judgment for the Housing Authority of the City of Camden (“HACC”) on Linan-Faye’s claims under public contract law and 42 U.S.C. § 1983. Because the district court erred in applying federal common law rather than state law to resolve this dispute, we will reverse and remand to the district court for further proceedings. Nevertheless, since we conclude that in the absence of New Jersey law which specifically interprets “termination for convenience” clauses New Jersey courts would look to federal common law for guidance, we will limit the triable issues on remand to a determination of: (1) the definition of “work performed” for purposes of paragraph 17 of Linan-Faye’s contract with HACC; (2) the pre-termination expenses incurred by Linan-Faye that may be compensable as “work performed” under paragraph 17 of the contract; and (3) HACC’s liability, if any, for damages resulting from HACC’s withholding of Linan-Faye’s performance bond after termination. Finally, because the district court did not err in determining that Linan-Faye failed to demonstrate a protectible property or liberty interest sufficient to support its § 1983 claim, we will affirm the district court’s grant of summary judgment on this claim. I. FACTS & PROCEDURAL HISTORY On August 11, 1988, HACC advertised for bids on a housing modernization project. The project involved the renovation and rehabilitation of 244 housing units and was to be funded in substantial part by a grant from the United States Department of Housing and Urban Development pursuant to the Public and Indian Housing Comprehensive Improvement Assistance Program (“CIAP”). Plaintiff, Linan-Faye, attended all required pre-bid meetings and submitted a bid of $4,264,000, together with supporting documentation which included a bid bond, performance bond, qualification statement, and required affidavits. Linan-Faye was the lowest responsible bidder for the job, underbidding its nearest competitor by $600,000. Accordingly, HACC informed Linan-Faye that the contract was to be forthcoming. Linan-Faye engaged in preparatory activities in connection with the contract, including meeting with prospective subcontractors, job" }, { "docid": "13518717", "title": "", "text": "after the district court determined that specific performance was not available to Linan-Faye. In April of 1992, HACC filed a motion for summary judgment on Linan-Faye’s civil rights claim and for the first time argued, in that same motion, that the “termination for convenience” clause set forth in paragraph 17 of the General Conditions of their contract limited Linan-Faye’s damages under the contract. The district court granted HACC’s motion for summary judgment on the § 1983 claim, but deferred decision on the effect of the termination of convenience clause pending further discovery. Upon a renewed motion for summary judgment, the district court held for HACC, determining that Linan-Faye’s damages would be limited to those compensable under the contract’s termination for convenience clause. The district court left open, however, the possibility of recovery for damages accruing from HACC’s initial failure to identify specifically the termination as one of convenience. HACC filed its third motion for summary judgment on October 27, 1993. In that motion, HACC contended that since Linan-Faye never began work under the contract, it could not recover any damages under the termination for convenience clause. Linan-Faye responded that it could recover damages for: (1) preparatory costs such as soliciting subcontractors, pricing, and pre-construction meetings; (2) improper notice of termination; (3) pre-termination delay by HACC; and (4) HACC’s refusal to relinquish Linan-Faye’s performance bond. Determin ing that federal common law applied in interpreting this contract, the district court held that Linan-Faye incurred no compensable damages under the termination for convenience clause. The court, therefore, entered an order granting summary judgment for HACC. This appeal followed. Following oral argument before this Court, HACC and Linan-Faye agreed to participate in non-binding mediation of the controversy before the Honorable Max Rosenn, Senior Circuit Judge. By memorandum dated November 9, 1994, Judge Rosenn informed us that efforts to reach' a settlement of the controversy through mediation were unsuccessful. II. JURISDICTION & OVERVIEW OF ISSUES RAISED IN THIS APPEAL The district court exercised jurisdiction in this matter by virtue of the diversity of citizenship of the parties with the requisite amount in controversy pursuant to" }, { "docid": "13518778", "title": "", "text": "detention. Id. Hete, HACC lawfully received Linan-Faye’s performance bond pursuant to a contract between the parties. Following termination, however, HACC’s legal right to retain the bond is the subject of the dispute that must be resolved on remand. If the jury were to find HACC liable for improper retention of the bond, the appropriate measure of damages would be compensation for jobs lost by Linan-Faye (after termination) that resulted from HACC's improper action. . See infra Part V for analysis of the constructive termination for convenience doctrine. BECKER, Circuit Judge, Concurring and Dissenting. I join in Parts I, II, and III of the majority opinion. However, I dissent from Part IV because I do not agree that New Jersey would apply to this garden variety construction dispute between a builder and a local governmental agency precepts drawn from a potpourri of federal cases which amount at best to a hodgepodge, and at worst to a regime so inhospitable and unfair to small contractors who deal with government agen cies as to be inconsistent with New Jersey jurisprudence. Rather, I believe that New Jersey would apply its own law, which would not recognize the doctrine of “constructive termination for convenience” but rather would apply the normal rule of contract breach which, on this record, would unquestionably render HACC liable. Moreover, even if the New Jersey Supreme Court were to assimilate federal law, I do not think that it would read that law in the matter predicts ed by the majority. The precepts that the majority applies are gleaned from cases that have been excoriated in critical commentary because they are in considerable measure poorly reasoned. I also find myself unable to join in Part VII, dealing with Linan-Faye’s 42 U.S.C. § 1983 claims. I cannot agree with the majority that HACC’s arguably improper retention of Linan-Faye’s performance bond, which the company requires in order to engage in any business, did not impair Linan-Faye’s liberty interest. I do, however, join the majority with respect to its rejection of Linan-Faye’s property interest claim. I. What Law Would New JeRsey Apply? The majority, notwithstanding" }, { "docid": "13518762", "title": "", "text": "of payments under a contract to maintain parking meters resulted in the contractor being left with insufficient capital to pursue other work. Id. at 963, 970. The court held that although the consequential damages of an alleged breach may be severe, this fact alone cannot convert a contract claim into a deprivation of liberty. Id. at 970. We agree with the reasoning of the Court of Appeals for the Second Circuit, and conclude that Linan-Faye fails to establish a claim of constitutional magnitude. We will affirm the district court’s grant of summary judgment to HACC on Linan-Faye’s § 1983 claim. VIII.' ESTOPPEL CLAIMS Linan-Faye’s final contention is that HACC is precluded from refusing to pay compensation by reason of principles of equitable and judicial estoppel. Linan-Faye argues that HACC could have terminated for convenience in 1988 but that it did not, and it breached a duty of fairness by waiting two years before deciding to terminate. Linan-Faye relies on a single case, M. & O. Disposal Co. v. Township of Middletown, 100 N.J.Super. 558, 242 A.2d 841 (A.D.1967), aff'd, 52 N.J. 6, 242 A.2d 841 (1968), to support its equitable estoppel argument. Additionally, Linan-Faye argues that because HACC asserted in prior judicial pro- eeedings that there would be a “defined measure of damages” under the termination for convenience clause, HACC is now judicially estopped from arguing that it owes Linan-Faye nothing. We find Linan-Faye’s equitable estoppel claim unpersuasive. HACC could have terminated for convenience in 1988, but it also could have pursued completion of the contract according to its terms. HACC’s decision to terminate after an inability to agree to such terms does not breach a duty of fairness. Indeed, this termination was within HACC’s rights under the contract and, as explained above, the constructive termination for convenience doctrine allows HACC to convert its original termination into a termination for convenience. Moreover, Linan-Faye’s reliance on M. & 0. Disposal is misplaced. That case involved the question of whether a municipality impliedly ratified a contract for extra work which was outside the scope of contract to dispose of garbage. Id., 100" }, { "docid": "13518760", "title": "", "text": "through the National Resident Matching Program. Id., 928 F.2d at 1393. Shortly before Unger was to begin the program, she received a letter stating that the University had decided to discontinue the program. Id. Unger filed suit under 42 U.S.C. § 1983. Id. Declaring that the contract in Unger did not fall into either of the two protected categories, we dismissed Unger’s § 1983 claim. Id. at 1402. We relied in part on the reasoning of our previous decision in Reich v. Beharry, 883 F.2d 239 (3d Cir.1989), where we stated: Many ... courts have observed that if every breach of contract by someone acting under color of state law constituted a deprivation of property for procedural due process purposes, the federal courts would be called upon to pass judgment on the procedural fairness of the processing of a myriad of contract claims against public entities. We agree that such a wholesale federalization of state public contract law seems far afield from the great purposes of the due process clause. Reich, 883 F.2d at 242 (citations omitted). Linan-Faye’s contract with HACC does not fall into either of the two categories we delineated in Unger. The contract does not confer a protected status on the plaintiff and the state entity could terminate the contract for reasons other than for cause. Indeed, it could be terminated for convenience. To grant Linan-Faye a remedy under § 1983 would create the wholesale federalization of state public contract law that concerned us in Unger and Reich. Accordingly, the district court did not err in granting summary judgment for HACC on Linan-Faye’s claim. Turning to Linan-Faye’s assertion that it has been deprived of a constitutionally protected liberty interest, we also find that the district court did not err in granting summary judgment for HACC. The Court of Appeals for the Second Circuit addressed a case factually similar to the one at hand in S & D Maintenance Co. v. Goldin, 844 F.2d 962 (2d Cir.1988). In that case, a contractor brought a § 1983 claim against the City of New York, claiming that the City’s withholding" }, { "docid": "13518761", "title": "", "text": "(citations omitted). Linan-Faye’s contract with HACC does not fall into either of the two categories we delineated in Unger. The contract does not confer a protected status on the plaintiff and the state entity could terminate the contract for reasons other than for cause. Indeed, it could be terminated for convenience. To grant Linan-Faye a remedy under § 1983 would create the wholesale federalization of state public contract law that concerned us in Unger and Reich. Accordingly, the district court did not err in granting summary judgment for HACC on Linan-Faye’s claim. Turning to Linan-Faye’s assertion that it has been deprived of a constitutionally protected liberty interest, we also find that the district court did not err in granting summary judgment for HACC. The Court of Appeals for the Second Circuit addressed a case factually similar to the one at hand in S & D Maintenance Co. v. Goldin, 844 F.2d 962 (2d Cir.1988). In that case, a contractor brought a § 1983 claim against the City of New York, claiming that the City’s withholding of payments under a contract to maintain parking meters resulted in the contractor being left with insufficient capital to pursue other work. Id. at 963, 970. The court held that although the consequential damages of an alleged breach may be severe, this fact alone cannot convert a contract claim into a deprivation of liberty. Id. at 970. We agree with the reasoning of the Court of Appeals for the Second Circuit, and conclude that Linan-Faye fails to establish a claim of constitutional magnitude. We will affirm the district court’s grant of summary judgment to HACC on Linan-Faye’s § 1983 claim. VIII.' ESTOPPEL CLAIMS Linan-Faye’s final contention is that HACC is precluded from refusing to pay compensation by reason of principles of equitable and judicial estoppel. Linan-Faye argues that HACC could have terminated for convenience in 1988 but that it did not, and it breached a duty of fairness by waiting two years before deciding to terminate. Linan-Faye relies on a single case, M. & O. Disposal Co. v. Township of Middletown, 100 N.J.Super. 558, 242" }, { "docid": "13518779", "title": "", "text": "Jersey jurisprudence. Rather, I believe that New Jersey would apply its own law, which would not recognize the doctrine of “constructive termination for convenience” but rather would apply the normal rule of contract breach which, on this record, would unquestionably render HACC liable. Moreover, even if the New Jersey Supreme Court were to assimilate federal law, I do not think that it would read that law in the matter predicts ed by the majority. The precepts that the majority applies are gleaned from cases that have been excoriated in critical commentary because they are in considerable measure poorly reasoned. I also find myself unable to join in Part VII, dealing with Linan-Faye’s 42 U.S.C. § 1983 claims. I cannot agree with the majority that HACC’s arguably improper retention of Linan-Faye’s performance bond, which the company requires in order to engage in any business, did not impair Linan-Faye’s liberty interest. I do, however, join the majority with respect to its rejection of Linan-Faye’s property interest claim. I. What Law Would New JeRsey Apply? The majority, notwithstanding the considerable authority of the Dobson case, supra Maj.Op. at 921, reasons that because there are no cases in New Jersey construing the effect of termination for convenience clauses, “courts in New Jersey would recognize that where the parties have incorporated a particular clause pursuant to federal regulation, they do so against the backdrop of federal case law addressing the clause,” and hence would adopt federal law, whatever that may be. That is the sum and substance of the majority’s argument. It is, I suggest, pretty “thin soup,” neither documented nor reasoned. The majority’s prediction also ignores the facts that should govern the analysis required in such circumstances. A review of the facts Linan-Faye has advanced and supported in connection with the summary judgment motion — which are glossed over by the majority — will illuminate the correct prediction of New Jersey law. At this stage, these facts must obviously be viewed in the light most favorable to Linan-Faye, the non-moving party. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976)." }, { "docid": "13518758", "title": "", "text": "next asserts that the district court erred in granting summary judgment against it on its claim under 42 U.S.C. § 1983. Linan-Faye argues it has a protectible property interest in its contract with HACC that is entitled to Fourteenth and Fifth Amendment protection. Further, Li-nan-Faye contends that HACC’s retention of its performance bond implicates a liberty interest entitled to constitutional protection. In granting summary judgment, the district court held that whatever property interest Linan-Faye may have had, it does not rise to a sufficient level of certainty or dependency to merit constitutional protection. Linan-Faye Construction Co. v. Housing Authority of Camden, 797 F.Supp. 376, 380 (D.N.J.1992). We agree with the district court’s resolution of this matter. This Court recently surveyed the law concerning Fourteenth Amendment claims based on contracts with state entities. Unger v. National Residents Matching Program, 928 F.2d 1392 (3d Cir.1991). We stated in Unger that it is beyond dispute today that a contract with a state entity can give rise to a property right protected under the Fourteenth Amendment. Id. at 1397 (citing Perry v. Sindermann, 408 U.S. 593, 599-601, 92 S.Ct. 2694, 2698-2700, 33 L.Ed.2d 570 (1972)). Nevertheless, we stated that the Supreme Court has never held that every state contract gives rise to such a protectible property interest. Id. As we explained in Unger, relevant Supreme Court cases and cases from other courts of appeals instruct that two general types of contract rights are recognized as property protected under the Fourteenth Amendment: (1) where “the contract confers a protected status, such as those ‘characterized by a quality of either extreme dependence in the case of welfare benefits, or permanence in the case of tenure, or sometimes both, as frequently occurs in the case of social security benefits’”; or (2) where “the contract itself includes a provision that the state entity can terminate the contract only for cause.” Id. 928 F.2d at 1399 (citing S & D Maintenance Co. v. Goldin, 844 F.2d 962, 966-67 (2d Cir.1988)). In Unger, a physician licensed to practice medicine in Pennsylvania was admitted into Temple University Hospital’s dermatology residency program" }, { "docid": "13518713", "title": "", "text": "termination. Finally, because the district court did not err in determining that Linan-Faye failed to demonstrate a protectible property or liberty interest sufficient to support its § 1983 claim, we will affirm the district court’s grant of summary judgment on this claim. I. FACTS & PROCEDURAL HISTORY On August 11, 1988, HACC advertised for bids on a housing modernization project. The project involved the renovation and rehabilitation of 244 housing units and was to be funded in substantial part by a grant from the United States Department of Housing and Urban Development pursuant to the Public and Indian Housing Comprehensive Improvement Assistance Program (“CIAP”). Plaintiff, Linan-Faye, attended all required pre-bid meetings and submitted a bid of $4,264,000, together with supporting documentation which included a bid bond, performance bond, qualification statement, and required affidavits. Linan-Faye was the lowest responsible bidder for the job, underbidding its nearest competitor by $600,000. Accordingly, HACC informed Linan-Faye that the contract was to be forthcoming. Linan-Faye engaged in preparatory activities in connection with the contract, including meeting with prospective subcontractors, job planning and pricing, talking with relevant inspectors, and seeming insurance. Also, on several occasions, representatives of Linan-Faye met with HACC and its architect to discuss specifications and make preparations for the commencement of physical construction. Linan-Faye, however, never began physical construction because numerous disputes broke out between the parties over interpretation of the specifications. Linan-Faye contends that HACC demanded concessions before permitting work to begin. HACC maintains that the parties arrived at different interpretations of the project plans and specifications, and this conflict became evident at pre-construction meetings. On November 29, 1988, as the result of these disputes, HACC advised Li-nan-Faye that it was going to rebid the project. Linan-Faye filed suit to enjoin this rebidding and allow it to complete the project as bid. The district court entered a temporary restraining order to prevent HACC from accepting further bids. Subsequently, the court approved a Stipulation of Settlement and Order of Dismissal with Prejudice, under which the parties agreed to execute the contract and proceed with the project as originally. planned. Nevertheless, disputes soon broke" }, { "docid": "13518716", "title": "", "text": "by the delay in commencing construction. HACC responded that Linan-Faye had to begin work before it would address the issue of the price increase. HACC elected to terminate Linan-Faye’s contract by letter dated September 25, 1990. In that letter, Gregory Kern, the Interim Executive Director of HACC, stated that HACC would instruct the Modernization Office to assist Linan-Faye in reclaiming its performance bond. While the letter did not mention the terms “breach” or “default,” it did state that Linan-Faye “had continually failed to demonstrate its intent to perform under the public contract.” Letter from Kern to Norman Faye (September 25, 1990); App.Vol. I at 114 — 115. HACC confirmed its decision to terminate by letter dated October 23, 1990. Linan-Faye objected to the termination and filed the instant action on October 26, 1990, setting forth theories of recovery under New Jersey public contracts law and 42 U.S.C. § 1983. Linan-Faye served HACC with a complaint in December of 1990 seeking specific performance and damages. HACC did not surrender Linan-Faye’s performance bond until July of 1991, after the district court determined that specific performance was not available to Linan-Faye. In April of 1992, HACC filed a motion for summary judgment on Linan-Faye’s civil rights claim and for the first time argued, in that same motion, that the “termination for convenience” clause set forth in paragraph 17 of the General Conditions of their contract limited Linan-Faye’s damages under the contract. The district court granted HACC’s motion for summary judgment on the § 1983 claim, but deferred decision on the effect of the termination of convenience clause pending further discovery. Upon a renewed motion for summary judgment, the district court held for HACC, determining that Linan-Faye’s damages would be limited to those compensable under the contract’s termination for convenience clause. The district court left open, however, the possibility of recovery for damages accruing from HACC’s initial failure to identify specifically the termination as one of convenience. HACC filed its third motion for summary judgment on October 27, 1993. In that motion, HACC contended that since Linan-Faye never began work under the contract, it" }, { "docid": "13518780", "title": "", "text": "the considerable authority of the Dobson case, supra Maj.Op. at 921, reasons that because there are no cases in New Jersey construing the effect of termination for convenience clauses, “courts in New Jersey would recognize that where the parties have incorporated a particular clause pursuant to federal regulation, they do so against the backdrop of federal case law addressing the clause,” and hence would adopt federal law, whatever that may be. That is the sum and substance of the majority’s argument. It is, I suggest, pretty “thin soup,” neither documented nor reasoned. The majority’s prediction also ignores the facts that should govern the analysis required in such circumstances. A review of the facts Linan-Faye has advanced and supported in connection with the summary judgment motion — which are glossed over by the majority — will illuminate the correct prediction of New Jersey law. At this stage, these facts must obviously be viewed in the light most favorable to Linan-Faye, the non-moving party. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976). A The Facts Viewed in the Light Most Favorable to Linan-Faye It is undisputed that the parties had a binding $4,264,000 contract for the rehabilitation of 244 housing units. Linan-Faye, with declarations cognizable in summary judgment proceedings: (1) represents itself to be an experienced, highly regarded contractor that was ready, willing, and able to perform the job in a timely fashion; (2) states that through incompetence, poor planning, or other contractors’ delay, the HACC failed or refused to give Linan-Faye even a Notice to Proceed for a full year; and (3) submits that after finally giving that Notice, HACC then .proceeded, without'justification, to delay Li-nan-Faye for almost another year. Linan-Faye also represents that HACC never supplied' Linan-Faye with a list of which vacant units to work on; that turmoil reigned at HACC as the Executive Director was replaced by a new Acting Executive Director, Gregory Kern, in July 1990; and that Kern decided to “clean house” by, inter alia, summarily terminating Linan-Faye’s contract. It is also undisputed that in the course of the termination dialogue," }, { "docid": "13518796", "title": "", "text": "although the Court of Appeals for the Second Circuit framed the § 1983 claim as one challenging the plaintiffs dismissal from government employment, which clearly did not rise to a constitutional violation, the true basis of the plaintiffs liberty claim was that New York City’s refusal to pay amounts already due had essentially forced the company out of business and left it “tottering near bankruptcy, unable to get work, as a direct result of the city’s alleged breach of the contracts and withholding of payments.” S & D, 844 F.2d at 970. While I believe that S & D may be in error to the extent it denies that the plaintiffs claim implicated a protected liberty interest, the instant case provides an even stronger claim. Whereas the city defendant in S & D could argue that the plaintiff was not entitled to the amounts that it alleged it had already earned, HACC cannot make any such argument about its (arguably unjustified) failure to return Linan-Faye’s own performance bond. Also, when HACC interfered with Linan-Faye’s (pre-existing) capacity to obtain large construction contracts, the core of its business, it brought this case into close resemblance to those cases where the state actors are held liable under § 1983 for revoking or interfering substantially with a person’s license to pursue a chosen occupation. Cf. Herz v. Degnan, 648 F.2d 201 (3d Cir.1981) (finding violation of a property interest in the revocation of a professional license). Without the use of its bonding line, Linan-Faye was paralyzed: It could not bid on any significant contracts and thus could not replace the business lost through the government’s breach. Hence, because HACC’s arguably unjustified retention of the bond did impinge on protected liberty interests, the district court erred by awarding the defendant summary judgment on this claim. I therefore also dissent from the portion of the majority opinion that affirms this ruling. Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE, SAROKIN and GARTH , Circuit Judges. . I take no position on Parts VLB through F and VIII of" }, { "docid": "13518793", "title": "", "text": "As lawyers who have dealt with construction disputes know, these contracts almost always generate some dispute over specifications, and any construction dispute rancorous enough to spawn litigation will almost certainly have led to the requisite deterioration in business relations. The facts of this case illustrate how circular a deterioration-of-business-relations test can be, for HACC did not even attempt to invoke the clause until litigation began. The majority constructs a regime under which a dispute arising out of a garden variety contract between a builder and a local housing authority, which is not a federal government contract but only a local agency contract to which Certain federal regulations apply, has been severed from its common law roots. The majority’s application of selected federal cases renders these local agency contracts virtually illusory by giving an arguably defaulting local agency the right to. avoid its own breach, and sharply limit its liability simply by incanting the termination for convenience clause two years after the fact. In my view, it is inconceivable that the New Jersey Supreme Court, which has so consistently supported liberal awards of contract damages, would countenance that result, especially in the fact scenario at bar. This conclusion is strongly buttressed by the scathing criticism that has been levied at Tomcello and the cognate jurisprudence. See, e.g.,. Stephen N. Young, Note, Limiting the Government’s Ability To Terminate for Convenience Following Tornecello, 52 Geo. Wash.L.Rev. 892 (1984) (suggesting that the Tomcello decision provides a reason to eliminate the government’s ability to terminate for convenience entirely). Because I do not believe that the New Jersey Supreme Court would adopt the federal interpretation but would instead continue to give exculpatory clauses such as the termination for convenience clause only narrow — if any — effect, I dissent. II. The § 1983 Claim I also dissent from the majority’s affir-mance of the summary judgment granted on Linan-Faye’s § 1983 claim. While I agree that Linan-Faye’s interest in the contract did not rise to a property interest protected by the Constitution, I cannot agree that HACC’s unjustified retention of Linan-Faye’s performance bond did not deprive Linan-Faye" } ]

[ { "docid": "10662085", "title": "", "text": "Board of Land Appeals exercising delegated authority from the Secretary of Interior, affirmed the decision with modification. In reviewing a decision of the Secretary of Interior, it is the function of this Court to see that the Secretary, in arriving at his ruling, applied the proper legal standards and interpreted applicable rules and regulations correctly. Adams v. United States, 318 F.2d 861 (9th Cir. 1963); Converse v. Udall, 399 F.2d 616 (9th Cir. 1968). It is also the duty of this Court to determine whether upon review of the entire record, there is substantial evidence to support the Secretary’s decision. Denison v. Udall, 248 F.Supp. 942 (D.C.Ariz. 1965); Henrikson v. Udall, 350 F.2d 949 (9th Cir. 1965). Plaintiffs contend that the real parties interested in the mining claim were not served with the contest complaint and that therefore the complaint should be summarily dismissed. This contention is one which plaintiffs, by their attorneys, have laboriously strained to fabricate in order to seek the relief requested. It appears that plaintiffs attempt to confuse the Court with the fact that two powers of attorney were executed on June 11, 1968, and thereby attempt to impute knowledge of both to the Bureau of Land Management. It appears that two powers of attorney were indeed executed on said date, and both appointed Rose Mary Druse as attorney-in-fact for Robert Sainberg. The first empowered her to prosecute the application of the mineral patent. The second power coupled with an interest appointed her as attorney-in-fact empowering her “to convey to Frank Patrick Vallely and his heirs any or all of my right, title, claim or interest in and to the Silver Dollar No. 1 Lode Mining Claim”. The first power of attorney was furnished the Bureau of Land Management by letter of July 19, 1968. The letter, which is in the administrative record, makes absolutely no mention of the second power of attorney coupled with an interest. The letter was mailed by Mr. Keith Quail, plaintiffs’ attorney, for the sole purpose of informing the Bureau that a Judgment and Decree as to the adverse claim filed" } ]

[ { "docid": "8655234", "title": "", "text": "lands in which valuable mineral deposits are found, 30 U.S.C. § 26; and (3) the right to patent lands in which valuable mineral deposits are found, 30 U.S.C. § 29. In addition to these primary rights, the Mining Law, in tandem with FLPMA, vests individuals with the following subordinate rights: (1) the right to ingress and egress to and from valid mining claims, 43 U.S.C. § 1732(b); and (2) the right to locate up to five acres of nonmineral land for mill site use in association with each valid mining claim, 30 U.S.C. § 42. The latter two primary rights (possession and patent) and both subordinate rights (ingress/egress and mill site use) are premised upon the perfection of a valid mining claim, which, as noted above, requires the making of a “discovery,” as well as posting, recordation, payment of annual fees, and compliance with other applicable statutory and regulatory requirements. 30 U.S.C.A. §§ 28, 28f (2003); Locke, 471 U.S. at 86, 105 S.Ct. 1785. While a claimant can explore for valuable mineral deposits before perfecting a valid mining claim, without such a claim, she has no property rights against the United States (although she may establish rights against other potential claimants), and her use of the land may be circumscribed beyond the UUD standard because it is not explicitly protected by the Mining Law. See Cameron v. United States, 252 U.S. 450, 460, 40 S.Ct. 410, 64 L.Ed. 659 (1920) (stating that “no right arises from an invalid claim of any kind”); accord Best v. Humboldt Placer Mining Co., 371 U.S. 334, 337, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); Cole v. Ralph, 252 U.S. 286, 296, 40 S.Ct. 321, 64 L.Ed. 567 (1920); United States v. Allen, 578 F.2d 236, 238 (9th Cir.1978); Clouser v. Madigan, 1992 WL 694368, at *16 (D.Or. Dec.22, 1992); Skaw v. United States, 13 Cl.Ct. 7, 28 (1987), aff'd, 847 F.2d 842, 1988 WL 34099 (Fed.Cir.1988) (unpublished opinion) (“A mining claim does not create any rights against the United States and is not valid unless and until all requirements of the mining laws have" }, { "docid": "8655194", "title": "", "text": "this court are the parties’ and intervenor’s cross-motions for summary judgment. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that each motion should be granted in part and denied in part. I. BACKGROUND INFORMATION A. Regulatory Background 1. The Mining Law A correct resolution of the issues presented by this case requires an understanding and analysis of the pertinent legislative scheme and must begin with the General Mining Law, 30 U.S.C. §§ 21 et seq. (2000) (“Mining Law”), a law that was enacted in 1872. The Mining Law provides: “All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase ... by citizens of the United States ....” 30 U.S.C. § 22. The Mining Law gives claimants the right to “a unique form of property.” Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963). It gives any citizen the right to enter onto federal public lands, stake a claim on these lands, and obtain the exclusive right to extract the minerals thereon-all without payment to the United States and without acquiring title to the land itself. Union Oil Co. v. Smith, 249 U.S. 337, 348-49, 39 S.Ct. 308, 63 L.Ed. 635 (1919). Alternatively, the Mining Law gives a claimant the right to obtain title to the lands, by proving the location of a valuable mineral deposit on her mining claim, and paying a nominal fee ($5.00 per acre for certain claims, $2.50 per acre for others). 30 U.S.C. §§ 29-30, 37. 2. The Federal Land Policy and Management Act Much changed in this nation in the 100 years following the Mining Law’s 1872 enactment. Accordingly, in 1976, Congress enacted FLPMA to amend the Mining Law and reflect the nation’s changed view toward land and minerals. It is this law that is primarily at issue here. FLPMA establishes standards for BLM to regulate hardrock mining activities on the public lands. Such regulation is vital. BLM administers roughly one-fifth" }, { "docid": "8781693", "title": "", "text": "citizens to purchase lands in which valuable minerals are found. 30 U.S.C. §§ 35 and 36 restrict the maximum size of a placer mining claim to twenty acres per individual, up to 160 acres for an association claim. These sections do not provide, however, that land within a placer claim that does not contain valuable minerals can be purchased under § 22. The Interior Department has held: Considering all the statutes relating to mining claims it seems clear that it was not their purpose to permit the entire area allowed as a placer claim to be acquired as appurtenant to placer deposits irrespective of their extent. American Smelting & Refining Co., 39 L.D. 299, 301 (1910). The Department established a rule that, when challenged, the claimant must show that each ten-acre tract on his claim contains a valuable mineral. Id.; United States v. Bunkowski, 79 I.D. 43, 54-55 (1972). Since federal land is platted in ten-acre tracts, ten acres is a reasonable unit. “A court faced with a problem of statutory construction should give great deference to the interpretation of a statute by the . . . agency charged with its administration.” Brubaker v. Morton, 500 F.2d 200, 202 (9th Cir. 1974). The validity of a mining claim is established either by the granting of a patent upon application by the claimant or through contest proceedings initiated by the government. See Ideal Basic Industries, Inc. v. Morton, 542 F.2d 1364, 1367-68 (9th Cir. 1976). If the validity of the claim is contested, the claimant must prove that he has made a “discovery” of a valuable mineral deposit thereon. To do so, the claimant essentially must show that the mineral is “marketable” in that it can be mined, removed and disposed of at a profit. Verrue v. United States, 457 F.2d 1202, 1203 (9th Cir. 1972). Only one discovery per claim must be shown. 43 C.F.R. § 3842.1-1. However, if the character of the land is also challenged in the contest complaint, the claimant must show that each ten-acre tract contains a deposit of the mineral under the ten-acre rule. The" }, { "docid": "15416712", "title": "", "text": "PER CURIAM. Administrative proceedings culminated in a decision of the Secretary of the Interior that the appellees’ unpatented lode mining claims were null and void for lack of discovery of a valuable mineral deposit as of March 30, 1948 when these lands were withdrawn and reserved for the use of the Atomic Energy Commission subject only to valid existing rights. No question was or is raised concerning the validity of the withdrawal order. The trial court upon a review of the administrative record set aside the decision of the Hearing Officer of the Bureau of Land Management declaring the claims in question to be invalid, as confirmed by the District Director of the Bureau and by the Assistant Solicitor of Land Appeals acting for the Secretary of the Interior, on the grounds that the Secretary applied an erroneous test of mineral discovery, that witnesses for the government had been incompetent to testify as experts on the question of discovery and that the evidence was insufficient to support the administrative determination. We reverse on the authority of United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 70, decided April 22, 1968. The appellee before us relied upon the opinion below in Coleman v. United States, 363 F.2d 190 (9 Cir. 1966). The trial court adopted reasoning similar to that of the Ninth Circuit. Cf. companion decision, Garula v. Udall, 268 F.Supp. 910 (D.C.Colo. 1967), today reversed, 405 F.2d 1181 (10 Cir. 1968). The Supreme Court now makes it plain to us that in the case at bar the Secretary applied the approved standard in determining that for want of a valuable mineral deposit no discovery had been made by appellee at the time the land in question was validly withdrawn; that the administrative determination was binding upon the court if supported by substantial evidence on the whole record; that the government witnesses were competent to testify as experts with reference to the prudent man test, and that the Secretary’s decision was supported by substantial evidence on the whole record and was not clearly erroneous. Of no determinative concern" }, { "docid": "15416713", "title": "", "text": "of United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 70, decided April 22, 1968. The appellee before us relied upon the opinion below in Coleman v. United States, 363 F.2d 190 (9 Cir. 1966). The trial court adopted reasoning similar to that of the Ninth Circuit. Cf. companion decision, Garula v. Udall, 268 F.Supp. 910 (D.C.Colo. 1967), today reversed, 405 F.2d 1181 (10 Cir. 1968). The Supreme Court now makes it plain to us that in the case at bar the Secretary applied the approved standard in determining that for want of a valuable mineral deposit no discovery had been made by appellee at the time the land in question was validly withdrawn; that the administrative determination was binding upon the court if supported by substantial evidence on the whole record; that the government witnesses were competent to testify as experts with reference to the prudent man test, and that the Secretary’s decision was supported by substantial evidence on the whole record and was not clearly erroneous. Of no determinative concern in this case are refinements of evidentiary problems concerning the extent to which resort may be had to technological aids and inferences in the modern context on the basic issue of mineral discovery as now defined by the Supreme Court. Nor do we find it necessary to decide whether, as contended by the Secretary, there is a more limited judicial review of his decisions in this type of case than the one accepted by the trial court and applied here. . Act of May 10, 1872, 17 Stat. 91, 30 U.S.C. § 22. . Public Land Order No. 459, Mar. 25, 1948, 13 Fed.Reg. 1763. ON REHEARING EN BANC PER CURIAM. This case having been reargued before the court sitting en banc on petition for rehearing we hold appellees’ contentions to be without merit and adhere to the original opinion of the court filed herein. . BREITENSTEIN, Circuit Judge, deeming himself disqualified, did not participate." }, { "docid": "11659582", "title": "", "text": "prudence” postulated in the prudent man test. We note that he did not say proof that the mineral can be extracted at a profit, as in Coleman, supra. In the light of Coleman, we cannot hold that this test, as applied to this case, is erroneous. See also White v. Udall, 9 Cir., 1968, 404 F.2d 334. On the second appeal, the Assistant Solicitor applied the same test, and noted the distinction between such a case as this and a contest between rival claimants. Again, we find no error. Affirmed. . The Secretary argues that, on questions of fact, the decision of the Secretary, based on substantial evidence, is conclusive, in the absence of fraud or imposition. This position is a retreat from that taken in Coleman v. United States, supra, 363 F.2d at 194, where the rule proposed left out the phrase “based on substantial evidence.” We think that the proper rule is that stated in the Administrative Procedure Act, 5 U.S.C. § 706(2) (E) — whether the findings are supported by substantial evidence. See Henrikson v. Udall, 9 Cir., 1965, 350 F.2d 949; Foster v. Seaton, 1959, 106 U.S.App.D.C. 253, 271 F.2d 836; Palmer v. Dredge Corp., 9 Cir., 1968, 398 F.2d 791. . E. g., Lange v. Robinson, 9 Cir., 1906, 148 F. 799, 803; Caseaden v. Bortolis, 9 Cir., 1908, 162 F. 267, 271, 15 Ann.Cas. 625, . The timber on the Converse claims is valued at more than $90,000. . This situation changed with the construetion of a road by the Forest Service in 1959. It was in areas exposed by that work that additional evidence of mineralization was later found." }, { "docid": "11659560", "title": "", "text": "DUNIWAY, Circuit Judge: Converse appeals from a judgment upholding a decision of the Secretary of the Interior. The Secretary’s decision is reported at 72 Interior Dec. 141 (1965); that of the District Court is reported in Converse v. Udall, D.Or., 1966, 262 F.Supp. 583. This opinion assumes familiarity with those decisions. We affirm. In 1955 (P.L. 167, 69 Stat. ch. 375, p. 367) Congress adopted an Act commonly called The Surface Resources Act. Section 4 (30 U.S.C. § 612) reserves to the United States, as to unpatented mining claims located after July 23, 1955, the effective date of the Act, the right to manage and dispose of the vegetative surface resources and to manage other surface resources, except mineral deposits subject to location. Section 5 (30 U. S.C. § 613) sets up machinery for determining, as to any unpatented claim loeat-ed before that date, “the validity and effectiveness of any right or title to, or interest in or under such mining claim, which the mining claimant may assert contrary to or in conflict with the limitations and restrictions specified in section 4 of this Act * * * ” (69 Stat. p. 371). The Act further provides, in section 7 (30 U.S.C. § 615): “Nothing in this Act shall be construed in any manner to limit or restrict or to authorize the limitation or restriction of any existing rights of any claimant under any valid mining claim heretofore located, except as such rights may be limited or restricted as a result of a proceeding pursuant to section 5 of this Act.” (69 Stat. p. 372). One of the purposes of the Act was to eliminate some of the abuses that had occurred under the mining laws. H.R.Rep. 730, 84th Cong., 1st Sess., 2 U.S.Code Cong. & Ad. News, pp. 2474, 2478 (1955). See Coleman v. United States, 9 Cir., 1966, 363 F.2d 190, 197, rev’d on other grounds, 1968, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170; Funderberg v. Udall, 9 Cir., 1968, 396 F.2d 638. But Congress did not intend to change the basic principles of the mining" }, { "docid": "2357087", "title": "", "text": "is clearly one suitable for summary judgment. Having thus determined the suitability of summary judgment in the present case, we must now determine whether the Government was entitled to prevail as a matter of law. The gist of this case is whether a person, under the guise of re peatedly locating invalid mining claims may use public lands primarily for residential purposes. Appellants’ argument ignores this obvious distinction between the right to explore and the right permanently to occupy and reside on the site of a claim. Congress has broad power to regulate land within the public domain, Kleppe v. New Mexico, 426 U.S. 529, 538-39, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976), and a necessary ancillary to this power is the authority to “protect [public lands] from trespass and injury and to prescribe the conditions upon which others may obtain rights . .” Utah Power & Light Co. v. United States, 243 U.S. 389, 405, 37 S.Ct. 387, 389, 61 L.Ed. 791 (1917). Congress, in the exercise of this authority, has enacted legislation reserving to the United States the right to manage vegetative surface resources on an unpatented claim and specifically stating that any mining claims (such as the Allens’) “shall not be used . for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto.” 30 U.S.C. § 612 (1970). See Converse v. Udall, 399 F.2d 616, 617 (9th Cir. 1968), cert. denied, 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 569 (1969). While location of a valuable mineral establishes a right to the possession of the deposit, and a surface use superior to any subsequent claimant, mere exploration, without discovery, does not confer a privilege to obstruct surface use. Converse v. Udall, supra, 399 F.2d at 619-21. Thus, in the circumstances of the case at hand, it is clear that the Allens’ admittedly invalid mining claims cannot be used to assert rights contrary to those of the general public. See Mulkern v. Hammitt, 326 F.2d 896 (9th Cir. 1964). Accordingly, for the foregoing reasons, the judgment of the District Court is affirmed. AFFIRMED." }, { "docid": "12947683", "title": "", "text": "have been interpretations of the General Mining Law of 1872 (17 Stat. 91), which, with respect to the validity of mining locations and applications for patents of mining claims, has remained virtually unchanged since enactment. The problem here presented concerns the interpretation of “valuable mineral deposit” (30 U.S.C. § 22) and “valuable deposits” (30 U.S.C. § 29) as used by the Congress. See: Adams v. United States (9 CCA 1963), 318 F.2d 861, 870. Since Castle v. Womble, supra, the basic, judicially approved, standard of discovery of a valuable mineral requires proof that a person of ordinary prudence would be justified in further expenditure of his labor and means, with reasonable prospect of success, in developing a paying mine. “But value, in the sense of proved ability to mine the deposit at a profit need not be shown.” Adams v. United States, supra. This is clearly the standard applied to metallic minerals and minerals of limited occurrence. There is nothing in the mining laws which justifies a different standard for non-metallic minerals or minerals of widespread occurrence insofar as proof of a “valuable” mineral discovery is involved. In fact, with respect to building stone, the Congress has expressly stated: “Any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of law in relation to placer-mineral claims.” 30 U.S.C. § 161. (Emphasis added.) Thus it was implied that building stone claims must meet the same standards, and no greater standards, than those for the discovery of other valuable minerals. Cf. Mulkern v. Hammitt, (9 CCA 1964), 326 F.2d 896, sand and gypsum claims. What, then, is the import of Foster v. Seaton, 106 U.S.App.D.C. 253, 271 F.2d 836 (1959), and the Interior Department decisions which it followed? On casual reading, it appears to add additional, administratively imposed, non-statutory requirements for the discovery of “valuable” minerals of widespread occurrence. These are: “Accessibility, bona fides in development, proximity to market, existence of present demand and other factors (to show that) the deposit is of such value" }, { "docid": "10148685", "title": "", "text": "OPINION WIGGINS, Circuit Judge: R.T. Vanderbilt Company (“Vanderbilt”) sought an order from the district court directing the Secretary of the Interior (“Secretary”) to continue processing Vanderbilt’s mining patent applications. The district court granted summary judgment for the Secretary. We have jurisdiction under 28 U.S.C. § 1291. We AFFIRM, although for somewhat different reasons than those stated by the district court. BACKGROUND General Mining Law Overview Under the General Mining Act of 1872, 30 U.S.C. §§ 21-54, citizens can enter and use public lands for mining exploration. If valuable mineral deposits are found, a mining claim may be filed for a lode or placer claim, as well as a nearby mill-site. Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993). Possessory interest in a claim can be held indefinitely upon discovery of valuable mineral deposits provided that annual assessment work is performed, all necessary filings and fee payments are made, and the valuable mineral deposit continues to exist. Independence Mining Co. v. Babbitt, 105 F.3d 502, 506 (9th Cir.1997). A claimholder may apply to the Interior Department to obtain a patent which, if obtained, conveys fee title. Id. After the claimholder files the application and pays the purchase price, the Secretary signs a “first half of mineral final certificate,” or FHFC. Id. We have described the FHFC as the Secretary’s “administrative recording of an applicant’s compliance with the initial paperwork requirement of the Mining Law.” Id. The patent does not issue until the claim is determined to be valid; before the determination, a mineral examiner must complete a mineral report and the Secretary must review the entire application. Id. The Appropriations Act As part of the Department of the Interior and Related Agencies Appropriations Act of 1995 (“Appropriations Act”), Congress imposed a moratorium on processing mining patent applications unless revisions were made to the General Mining Act of 1872 by the time Congress adjourned sine die. Pub.L. No. 103-332 § 112, 108 Stat. 2499, 2519 (1994). The moratorium was set forth in Section 112 of Appropriations Act: If the House-Senate Conference Committee on H.R. 322 fails to report legislation which" }, { "docid": "11659581", "title": "", "text": "metals at all. He found that the mineralization that Converse and his father had found before the crucial date was slight and insufficient to meet the prudent man test, particularly in the light of the remoteness and inaccessibility of the claim. If this be an application of a marketability test, we think it proper. Converse’s father seems to have applied a similar test when he abandoned the claims in 1910. Nor is the finding made improper by the further finding that enough had been found to justify further exploration in the hope of making a legal discovery. As we have seen, this distinction is valid. On the first appeal, the Assistant Director applied the same test, and expressly recognized that “A valuable mine need not be a profitable one.” He added that, “Nevertheless, ‘the nucleus of value which sustains a discovery must be such that with actual mining operations under proper management a profitable venture may reasonably be expected to result.’ ” This expectation we take to be that of the mythical “person of ordinary prudence” postulated in the prudent man test. We note that he did not say proof that the mineral can be extracted at a profit, as in Coleman, supra. In the light of Coleman, we cannot hold that this test, as applied to this case, is erroneous. See also White v. Udall, 9 Cir., 1968, 404 F.2d 334. On the second appeal, the Assistant Solicitor applied the same test, and noted the distinction between such a case as this and a contest between rival claimants. Again, we find no error. Affirmed. . The Secretary argues that, on questions of fact, the decision of the Secretary, based on substantial evidence, is conclusive, in the absence of fraud or imposition. This position is a retreat from that taken in Coleman v. United States, supra, 363 F.2d at 194, where the rule proposed left out the phrase “based on substantial evidence.” We think that the proper rule is that stated in the Administrative Procedure Act, 5 U.S.C. § 706(2) (E) — whether the findings are supported by substantial evidence." }, { "docid": "23708222", "title": "", "text": "States, supra, 501 F.2d at 1390. The reviewing court may set aside the administrative decision if it cannot conscientiously find that the evidence supporting the decision is substantial, when viewed in the light of the entire record, including the body of evidence opposed to the agency’s view. See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456. We are convinced the district court fully complied with the procedural requirements of the Nickol case. The court’s order was not one which merely sustained the agency summarily. The opinion shows that the court examined the facts in the record, evaluated the conflicts, and determined that the facts supported the elements making up the ultimate administrative decision. Nickol, supra at 1390-91. Regardless of the type of judgment entered, the opinion gives sufficient indication of the facts relied on from the administrative record to sustain the court’s conclusion that the administrative decision was supported by substantial evidence. Mandrell v. Weinberger, 511 F.2d 1102, 1103 (10th Cir.). We thus find no procedural error in the disposition made. Second, plaintiffs challenge the administrative ruling that their claims were void due to plaintiffs’ failure to locate their claims in accordance with the mining laws. The federal mining laws provide generally that valuable mineral deposits in Government lands shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens “under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United Statés.” 30 U.S.G.A. § 22. The statute requires that the location must be distinctly marked on the ground so that its boundaries can be readily traced. See 30 U.S.C.A. § 28. Plaintiffs’ mining claims were located by Merle I. Zweifel. At the time he located the claims the federal regulation concerning the manner in which rights are initiated by location provided that a “location is made by staking the corners of the" }, { "docid": "2232191", "title": "", "text": "mineral, and metallurgical research, including the use and recycling of scrap to promote the wise and efficient use of our natural and reclaimable mineral resources, and (4) the study and development of methods for the disposal, control, and reclamation of mineral waste products, and the reclamation of mined land, so as to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities. 30 U.S.C. § 21a. .The Mining Act provides for the free and open exploration of public lands for valuable mineral deposits. Specifically, the statute states: Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsur-veyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States. 30 U.S.C. § 22. The Supreme Court has stated that the Congressional intent underlying this section is to reward and encourage the discovery of economically valuable minerals located on public lands. United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968). Congress has further provided that the “locators” of mineral deposits on federal lands under § 22 shall have the exclusive right to extract those minerals if they comply with federal law and state and local laws that do not conflict with federal law. See 30 U.S.C. § 26. The Mining Act establishes a system whereby a prospector can “go out into the public domain, search for minerals and upon discovery establish a claim to the lands upon which the discovery was made.” United States v. CurtisNevada Mines, Inc., 611 F.2d 1277, 1281 (9th Cir.1980). Thus, as shown in the text and structure of the statute, Congress has set out several purposes and objectives" }, { "docid": "12947692", "title": "", "text": "of present marketability at a profit to sustain a location of minerals of widespread occurrence. Estate of Victor E. Hanny, 63 I.D. 369 (1956); United States v. Everett Foster et al., 65 I.D. 1 (1958), aff’d Foster v. Seaton, 106 U.S. App.D.C. 253, 271 F.2d 836 (1959); United States v. Strauss, 59 I.D. 129 (1945); United States v. George W. Black, 64 I.D. 93 (1957); United States v. Barngrover, 57 I.D. 533 (1942); United States v. Fife, A-28386 (Sept. 19, 1960); United States v. Philip Jungert, A-28199 (April 14, 1960); United States v. Jacobo Armenta, A-28248 (June 22, 1960). We think the foundation does not support the structure. The Ellis cases, as was articulated in Foster v. Seaton, deal with the purpose of the location, in essence, the bona fides of the claimant, and seek to preclude the seizure of public lands for purposes other than mining under the mining laws. We perceive no reason for a distinction between a placer claim allegedly for gold bearing sand and a placer claim for building stone with respect to the requirements for proof of presence of a valuable mineral. The prudent man test of Castle v. Womble should suffice for either. Cf. Mulkern v. Hammitt, supra, sand and gypsum; Adams v. United States, supra, sand and gold; Henrikson v. Udall (9 CCA 1965), 350 F.2d 949, 229 F.Supp. 510, sand and gravel. In addition, the applicant may be required to show, if challenged to do so, that the claims were located in good faith for the minerals therein, and not for other unrelated purposes. This, of course, is not to suggest that the Foster v. Seaton guidelines of accessibility, bona fides in development, proximity to market and existence of a present demand and other factors are irrelevant as evidence bearing upon the ultimate issues of good faith and existence of a valuable mineral deposit. But these ultimate issues should be resolved in each case from the evidence as a whole and it is improper, in our view, to convert one aspect of relevant evidence into an absolute legal requirement with respect to" }, { "docid": "8655233", "title": "", "text": "the 2001 Regulations comport with this requirement because they give Interior the authority to regulate unclaimed lands “on a case-by-case” and “situation-specific” basis. Defs.’ Mot for Summ. J. at 35, 36. Interior’s essential argument, then, is that plaintiffs’ challenge must fail because, in practice, Interior already complies with all the requirements plaintiffs urge. 1. Distinction Between Claimed and Unclaimed Lands In order to parse these conflicting claims, the court must first explore the Mining Law, and the rights conferred thereunder. As noted above, the Mining Law provides: “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States ... are hereby declared to be free and open to exploration and purchase ... under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts ....” 30 U.S.C. § 22. In practice, the Mining Law gives citizens three primary rights: (1) the right to explore for valuable mineral deposits, 30 U.S.C. § 22; (2) the right to possess, occupy, and extract minerals from the lands in which valuable mineral deposits are found, 30 U.S.C. § 26; and (3) the right to patent lands in which valuable mineral deposits are found, 30 U.S.C. § 29. In addition to these primary rights, the Mining Law, in tandem with FLPMA, vests individuals with the following subordinate rights: (1) the right to ingress and egress to and from valid mining claims, 43 U.S.C. § 1732(b); and (2) the right to locate up to five acres of nonmineral land for mill site use in association with each valid mining claim, 30 U.S.C. § 42. The latter two primary rights (possession and patent) and both subordinate rights (ingress/egress and mill site use) are premised upon the perfection of a valid mining claim, which, as noted above, requires the making of a “discovery,” as well as posting, recordation, payment of annual fees, and compliance with other applicable statutory and regulatory requirements. 30 U.S.C.A. §§ 28, 28f (2003); Locke, 471 U.S. at 86, 105 S.Ct. 1785. While a claimant can explore for valuable mineral deposits before perfecting" }, { "docid": "21337025", "title": "", "text": "regulations do not conflict with the statutory framework found in the general mining law of May 10, 1872: Title 30, U.S.C. § 22: “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.” Title 30, U.S.C. §23: “ * * * but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.” Title 30, U.S.C., § 35: “Claims usually called ‘placers,’ including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims; * * * ” Plaintiffs would have us hold that it is the meaning and intent of the statute that a mining claim located for the purpose of prospecting the land before the discovery of valuable mineral thereon insures in the locator a valid possessory title to the land embraced within the claim which is enforceable against the United States, and which the United States cannot contest, absent other public use for the property. Plaintiffs also argue that if the regulations are interpreted to provide otherwise, they are, to that extent, void and in conflict with the statute. We do not believe the statute may reasonably be so construed. Section 22 does not grant to citizens of the United States the single right to locate, explore and exploit mining claims on the public domain. The statute grants two rights, (1) the right to explore and purchase all valuable mineral deposits in lands belonging to" }, { "docid": "23115831", "title": "", "text": "IMC contended had the effect of unreasonably delaying the process. The court denied this motion, holding that the rights to such patents vest only after the Secretary determines the validity of the patent applications. IMC, 885 F.Supp. at 1365. Moreover, the court found the Secretary’s administrative changes to be within his plenary powers over public land. Id. at 1369-70. The court concluded that the extraordinary relief of mandamus, which would require “reaching into an agency of the executive branch and dictating the details of its internal operations,” was not warranted in this case. Id. at 1364. This appeal follows. DISCUSSION I. Patent Application Process Under the General Mining Law Under the General Mining Act of 1872, citizens may locate mining claims on public lands open to location. 30 U.S.C. §§ 22-54. If a discovery of a “valuable mineral deposit” is made, the claim can be held indefinitely so long as the annual assessment work is performed, the necessary filings are made, fees are paid, and a valuable mineral deposit continues to exist. See Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336, 83 S.Ct. 379, 382, 9 L.Ed.2d 350 (1963). The claimant has the exclusive right to possession and enjoyment of all the surface included within the lines of the locations, but the United States retains title to the land. California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 575, 107 S.Ct. 1419, 1422, 94 L.Ed.2d 577 (1987). This possessory interest entitles the claimant to “the right to extract all minerals from the claim without paying royalties to the United States.” Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir.1993). The holder of a mining claim may apply to the DOI to obtain a patent which, if issued, conveys fee title. After filing the patent application and paying the purchase price, the Secretary signs a “first half of mineral entry final certificate” (FHFC), which is the DOI’s administrative recording of an applicant’s compliance with the initial paperwork requirement of the Mining Law. But, a patent is not issued until there has been a determination that the claim is" }, { "docid": "23708223", "title": "", "text": "procedural error in the disposition made. Second, plaintiffs challenge the administrative ruling that their claims were void due to plaintiffs’ failure to locate their claims in accordance with the mining laws. The federal mining laws provide generally that valuable mineral deposits in Government lands shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens “under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United Statés.” 30 U.S.G.A. § 22. The statute requires that the location must be distinctly marked on the ground so that its boundaries can be readily traced. See 30 U.S.C.A. § 28. Plaintiffs’ mining claims were located by Merle I. Zweifel. At the time he located the claims the federal regulation concerning the manner in which rights are initiated by location provided that a “location is made by staking the corners of the claim, posting notice of location thereon and complying with the State laws, regarding the recording of the location in the county recorder’s office, discovery work, etc.” 43 C.P.R. § 3401.1 (1969). And the Colorado statute, C.R.S. 92-22-12(2) (1963), now C.R.S. 34-43-112 (1973), which should be observed in the location of placer mining claims, provided: (a) Before filing [the] location certificate the discoverer shall locate his claim; (b) By posting upon such claim a plain sign or notice, containing the name of the claim, the name of the locator, the date of discovery and the number of acres or feet claimed; (c) By marking the surface boundaries with substantial posts, sunk into the ground, one at each angle of the claim. Plaintiffs argue that State law location requirements do not apply in contest proceedings initiated by the United States, citing Reins v. Murray, 22 L.D. 409 (1896). It is true that the Secretary in Reins said the public surveys are permanent and fixed and that it is the statute’s [30 U.S.C. § 28] intent that location" }, { "docid": "17634474", "title": "", "text": "this the IBLA held that Baker had met the Foster v. Seaton test for proving marketability. After concluding that Baker had met the two traditional tests, the IBLA went on to find that Baker had located claims in excess of the reasonably anticipated market need for cinders (the too much test). Because of this, the IBLA held that Baker’s less developed claims one and four were void for lack of discovery. III. STANDARD OF REVIEW In reviewing decisions of the IBLA, this court exercises a limited standard of review. Multiple Use Inc. v. Morton, 504 F.2d 448, 452 (9th Cir. 1974); see Henrikson v. Udall, 350 F.2d 949, 950 (9th Cir. 1965), cert. denied, 384 U.S. 940, 86 S.Ct. 1457, 16 L.Ed.2d 538. We cannot merely substitute our judgment for that of the IBLA. Multiple Use Inc., supra, 504 F.2d at 452; see United States v. Consolidated Mines & Smelting Co., Ltd., 455 F.2d 432, 448 (9th Cir. 1971). Our review is limited to an examination of whether the decision of the IBLA was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or not in accordance with the law. 5 U.S.C. § 706; see United States v. Wharton, 514 F.2d 406, 408-409 (9th Cir. 1975). Baker’s central argument on appeal is his challenge to the legal standard (the too much test) which was applied by the IBLA to invalidate claims one and four. Because there is no dispute over the facts, the substantial evidence standard has no bearing on this case and our review is therefore limited to the IBLA’s determination of the applicable law. See Ballard E. Spencer Trust, Inc. v. Morton, 544 F.2d 1067, 1069 (10th Cir. 1976). Generally, great deference is shown to an administrative agency’s interpretation of the law which it is charged with administering. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). However, the courts do not merely “stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” NLRB v." }, { "docid": "15233434", "title": "", "text": "PER CURIAM. Adversary proceedings instituted by the Bureau of Land Management of the Department of the Interior culminated in a decision of the Secretary of the Interior that the appellee’s unpatented lode mining claim was null and void for lack of discovery of a valuable mineral deposit. On review the trial court held that the Secretary had applied an erroneous test of mineral discovery, and set aside the administrative ruling. Garula v. Udall, 268 F.Supp. 910 (D.C.Colo.1967). Reversed on the authority of United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170, decided April 22, 1968, and for reasons similar to those stated in Udall v. Snyder, 405 F.2d 1179 (10 Cir. 1968), decided today. This conclusion is required notwithstanding the loss of the administrative record after its filing in the district court, since the record as reconstructed by stipulation and the order of the court below is deemed adequate to sustain the administrative determination in view of Coleman. . Act of May 10, 1872, 17 Stat. 91, 30 U.S.C. § 22." } ]

[ { "docid": "22257442", "title": "", "text": "by Fed.R.Civ.P. 4(j) is to be strictly applied, and if service of the summons and the complaint is not made in time and the plaintiff fails to demonstrate good cause for the delay “the court must dismiss the action as to the unserved defendant.” 128 Cong.Rec. H9848, 9850 (daily ed. Dec. 15, 1982) (emphasis added), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4441. It was in accordance with the strict interpretation of the 120-day rule intended by its drafters that the district court concluded that good cause had not been shown to excuse the plaintiff’s delay. Legislative history provides only one example where an extension for good cause would be permissible — specifically when the defendant intentionally evades service of process. 128 Cong.Rec. H9848, 9852 n. 25 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4446 n. 25. “Half-hearted” efforts by counsel to effect service of process prior to the deadline do not necessarily excuse a delay, even when dismissal results in the plaintiff's case being time-barred due to the fact that the statute of limitations on the plaintiff’s cause of action has run. See United States For Use of DeLoss v. Kenner General Contractors, Inc., 764 F.2d 707, 710 (9th Cir.1985). Furthermore, when a delay is the result of inadvertance of counsel, it need not be excused. See Wei, 763 F.2d at 372. Similarly, when there is a lack of diligent effort to ensure timely service of process, an extension of the time for service may be refused. See Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 477-78 (N.D.Ill.1984). The strictly-applied time limit of Fed.R.Civ.P. 4(j) and the requirement of Fed.R.Civ.P. 6(a) that the plaintiff and his counsel ensure timely service of process combine to require that the plaintiff and his counsel be denied the luxury of sitting back and waiting until the 120-day period expires before ensuring that process has been served upon the defendant. When the 120-day period reaches its expiration and adequate proof of service of process has not been received, the plaintiff must take additional steps to" } ]

[ { "docid": "23182344", "title": "", "text": "deliberate indifference to his serious medical needs. Kersh also asserted a state-law claim of intentional infliction of severe emotional distress. When he filed his complaint, Kersh received summons forms to prepare for service oh the defendants, but no summons were issued until Kersh hired counsel some seven months after filing. All of the defendants were eventually served, but Derozier and the City moved for dismissal for insufficient service of process. Their respective motions were denied, and a jury eventually returned a verdict against all defendants for 1132,50o. All defendants appealed. II. The appellants present a variety of arguments to this court. We will address each in turn. A. INSUFFICIENT SERVICE OF PROCESS Derozier and Troup argue that the district court improperly denied their respective motions to dismiss for insufficient service of process. Their motions were based on Federal Rule of Civil Procedure 4(j), which provides that a complainant must serve his defendant within 120 days of filing the suit to avoid dismissal. That dismissal may be ordered on the court’s own initiative or upon motion of the parties. Rule 4(j)’s one exception forms the basis of Kersh’s defense to the motions to dismiss: a complainant may be allowed to show “good cause” for failing to serve a defendant within the 120 days allowed. The district court denied these motions on grounds that Kersh’s stated belief that the clerk’s office would serve his defendants constituted “good cause” under Rule 4(j). Though we will consider later the merits of appellants’ contention, we must first address whether appellants waived this defense. Derozier’s motion to dismiss for defects in service was his first responsive pleading. Troup, however, moved to dismiss only after it had filed an answer in which it did not assert defect in service as a defense. Under Rule 12(h)(1)(B), the defense of insufficient service of process is waived unless made in a party’s first responsive pleading or an amendment to a first responsive pleading allowed as a matter of course. Troup argues that the mandatory language of Rule 4(j), which provides that the court shall dismiss an action in which service" }, { "docid": "357523", "title": "", "text": "days after the filing of the complaint, as generally required by Fed.R. Civ.P. 4(j). The order stated that if good cause was not shown, the action would be dismissed without prejudice. Welch filed a response stating that he had “observed from the experience of other inmates filing lawsuits, the practise [sic] is for the Judge in in forma pauperis cases (of which this is one) to eventually refer the case to a Magistrate, and for the Magistrate to eventually order the Clerks [sic] office to do the service of process.” Welch also noted that “[u]ntil all of this is done, a process which in virtually every instance takes much longer than 120 days, the Defendant is never served in an inmate case.” Attached to Welch’s response was a motion requesting the court to “issue a summons in this matter, and serve it and a copy of the Complaint, thru [sic] the U.S. Marshal, upon Mr. Folsom at the address” set forth in the complaint. Welch also requested a copy of the local rules “[i]n order that I may avoid making any more mistakes in my handling of this case.” On February 5, 1990, the district court dismissed the complaint without prejudice for failure to serve process. On February 20, 1990, Welch filed with the court — but did not serve upon Folsom — a motion for reconsideration pursuant to Fed.R.Civ.P. 59(e), asserting once more that the United States Marshal should have been directed to serve his complaint. In the alternative, Welch argued that he had shown “Rule 6 excusable neglect” (see Fed.R.Civ.P. 6(b)) and “Rule 4 good cause” (see Fed.R.Civ.P. 4(j)) for failure to effect timely service. By order entered March 23, 1990, Welch’s motion for reconsideration was denied. This appeal followed. II. A. Before addressing the merits of this case, we must first consider whether we have jurisdiction to entertain Welch’s appeal. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). Under 28 U.S.C. § 1291 — the only arguable basis for jurisdiction in this case — only final orders" }, { "docid": "22228979", "title": "", "text": "REILLY: Your Honor, after I received the response from the plaintiff regarding my client’s address as 51 Everett Street in Princeton, he informed me that that’s been his address. I understand that he may not have been there at the time when the Sheriff initially went out. The problem I have with the argument is that they did serve him eventually at another— at his residence. THE COURT: Yes. MR. REILLY: And that was some four months after the initial issuance of the summons and complaint, which I still feel is an inordinate amount of time— THE COURT: Well, I’ve seen no prejudice. The remedy if good cause were not shown would be dismissal without prejudice and re-service. Under the circumstances, I certainly find good cause has been shown. Motion is denied. The defendant will answer, move or otherwise plead. Subsequently, the district court memorialized this decision in the written order of September 15,1992. In that order, the court stated merely that “good cause” had been shown and that the motion to dismiss was denied for the reasons set forth on the record. Although the district court felt that Teleconcepts had not been prejudiced by the late service, absence of prejudice alone can never constitute good cause to excuse late service. See United States v. Nuttall, 122 F.R.D. 163, 166-67 (D.Del.1988) (courts have considered three factors in determining the existence of good cause: (1) reasonableness of plaintiffs efforts to serve (2) prejudice to the defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time to serve). We have equated “good cause” with the concept of “excusable neglect” of Federal Rule of Civil Procedure 6(b)(2), which requires “a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.” See Petrucelli, 46 F.3d at 1312 (Becker, J., concurring in part and dissenting in part). Thus, while the prejudice may tip the “good cause” scale, the primary focus is on the plaintiffs reasons for not complying with the time limit in" }, { "docid": "22228960", "title": "", "text": "came to believe that the questioned telephone calls had resulted from a fraudulent process known as “hacking.” This occurred when a person called an 800 number on a pay phone and remained silent until the receiving party hung up. A second dial tone would then be given to the 800 caller who could then call anywhere he or she desired without placing any additional coins in the telephone. On January 15, 1992, MCI filed its initial summons and complaint in an effort to collect the unpaid charges from Teleeoncepts. MCI attempted service through the Mercer County Sheriffs Department, but its initial attempt was unsuccessful. Service was eventually made on June 25, 1992. Teleeoncepts responded by filing a third-party complaint against Bell of Pennsylvania in which it alleged that Bell was responsible for the defect in the dial tone that allowed the illegal “hacking” and that Bell should therefore indemnify Teleeoncepts for any liability it may have to MCI. Teleeoncepts eventually moved to dismiss the complaint because MCI had failed to effect service of process within 120 days of filing of the complaint as required by Federal Rule of Civil Procedure 4(j). In an order dated September 15, 1992, the district court denied Teleeoncepts’ motion to dismiss MCI’s complaint finding that “good cause” excused the late service. Subsequently, the parties filed cross-motions for summary judgment. Teleeoncepts claimed that MCI’s action was untimely since it was not filed within the two year statute of limitations contained in the Communications Act. Teleeoncepts argued that MCI’s cause of action accrued either when it refused to pay the November 1989 bills, or at the latest, on December 27, 1989, when MCI gave notice that Teleeoncepts’ long distance services were terminated. MCI countered by argu ing that its action was timely because Tele-concepts’ services continued until March 1990 despite the December 27, 1989 disconnect notice. MCI further argued that under a 30 day payment provision of its federal tariff, final payment of the bills would not become due until either April 1990, or January 27, 1990, at the earliest even accepting Telecon-cepts’ position. Thus, MCI claimed" }, { "docid": "23329958", "title": "", "text": "upon defendant on May 12,1992, approximately three months after the expiration of the 120 day limit. The plaintiffs acted in response to an April 16, 1992 order, issued by a magistrate judge, advising them to produce proof of service or to immediately execute service in accordance with its instructions. Their first attempt at service resulted in a return by the district court clerk, on May 5,1992, for failure to file an acknowledgement of service signed by defendant. Finally, on May 12, one day after defendant filed its motion to dismiss, plaintiffs achieved service with the personal delivery of the complaint to defendant’s statutory agent. In response to GMC’s motion to dismiss, the plaintiffs asserted, through counsel , that their health problems and physical maladies provided good cause for not meeting the Fed.R.Civ.P. 4(j) service of process deadline. They further claimed to have made a good faith effort to comply with the rule. Finally, the Habibs argued a dismissal would be so unjust as to violate their due process rights and that GMC was in no way prejudiced by their failure to initiate a timely service. The district court found the arguments unpersuasive and, accordingly, concluded the Habibs failed to show good cause as to why the ease should not be dismissed pursuant to Fed.R.Civ.P. 4(j). The district court thereby granted GMC’s motion to dismiss. On appeal, William Habib controverts the propriety of the district court’s dismissal. Upon review, we find his challenge to be well taken. Fed.R.Civ.P. 4(j) sets forth, in relevant part: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.... Absent a showing of good cause to justify a failure of timely service, Fed. R.Civ.P. 4(j) compels dismissal. Moncrief v. Stone, 961 F.2d 595, 596 (6th Cir.1992);" }, { "docid": "974016", "title": "", "text": "lack of diligent effort to ensure timely service of process, an extension of time for service may be refused”). Plaintiff further argues that, because he properly served the FCS and Attorney General under Rule 4(i)(1), and the U.S. Attorney was aware of the case, even though it had not been served, the United States was not prejudiced by his failure to serve timely the U.S. Attorney, and the Court should, therefore, exercise its discretion to grant an extension. The Court finds this argument unpersuasive. Neither actual notice nor absence of prejudice to the defendant provides an adequate basis for excusing noncompliance with Rule 4(m), unless plaintiff has diligently attempted to complete service. See McGann v. New York, 77 F.3d 672, 674-75 (2d Cir.1996) (dismissing pro se complaint for failure to comply with Fed.R.Civ.P. 4(c)(2)(C) even though defendant had actually received summons and complaint); Delicada v. Bowen, 116 F.R.D. 564, 566 (S.D.N.Y.1987) (to extent prejudice to defendant is a valid inquiry, it is only relevant where plaintiff has been diligent in attempting to make service); see also MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir.1995) (“absence of prejudice alone can never constitute good cause to excuse late service”), cert. denied, _ U.S. _, 117 S.Ct. 64, 136 L.Ed.2d 25 (1996); In re City of Philadelphia Litig., 123 F.R.D. 512, 514 (E.D.Pa.1988) (“Neither actual notice of the action nor absence of prejudice to the defendant is alone sufficient to support a finding of ‘good cause’ under the Rule; plaintiff must demonstrate diligence in attempting to complete service.”). As previously stated, plaintiff did not exercise any diligence in this case. Plaintiff also argues that the Court should exercise its discretion to extend the time to complete service because, if the ease is dismissed at this point for failure to effect timely service, a refiled action stating the same cause of action may be time-barred by the 30-day statute of limitations. This consequence, however, is not enough, by itself, to warrant an extension of the 120-day period for service. While the Advisory Committee’s Notes on Rule 4(m) state that extension" }, { "docid": "1607046", "title": "", "text": "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. The Third Circuit has construed Rule 4(m) as requiring a court to extend time for service where the plaintiff demonstrates good cause. See McCurdy v. Amer. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir.1998); Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir.1995). For purposes of Rule 4(m), “good cause” has been defined as being tantamount to “excusable neglect,” under Fed. R. Civ.P. 6(b)(2), which requires “a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.” MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097. (3d Cir.1995). Because the “primary focus” in determining whether good cause exists “is on the plaintiffs reasons for not complying with the time limit in the first place,” the “[a]bsence of prejudice alone can never constitute good cause to excuse late service [of the complaint on the defendant.].” Id. Absent a showing of good cause, the decision whether to extend the time for service or to dismiss the complaint falls within the court’s sound discretion. Id. Plaintiffs original complaint in this matter was filed on July 30, 2001 and asserted, inter alia, a claim under section 1983 seeking injunctive relief against Defendant Carson Dunbar in his capacity as Superintendent of the New Jersey State Police. Pursuant to Rule 4(m), Plaintiff was required to serve Dunbar with a summons and copy of this complaint no later than November 28, 2001. On February 22, 2002, approximately two and a half months after the expiration of Rule 4(m)’s 120 day period for serving Plaintiffs original complaint, Defendant Dunbar filed the instant motion to dismiss Plaintiffs complaint based on Plaintiffs failure, as demonstrated by the Court’s docket in this matter, to comply with Rule 4(m)’s service requirements. Plaintiffs opposition brief is entirely silent with respect to Defendant Dunbar’s motion. The Court will, therefore, treat" }, { "docid": "22228980", "title": "", "text": "for the reasons set forth on the record. Although the district court felt that Teleconcepts had not been prejudiced by the late service, absence of prejudice alone can never constitute good cause to excuse late service. See United States v. Nuttall, 122 F.R.D. 163, 166-67 (D.Del.1988) (courts have considered three factors in determining the existence of good cause: (1) reasonableness of plaintiffs efforts to serve (2) prejudice to the defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time to serve). We have equated “good cause” with the concept of “excusable neglect” of Federal Rule of Civil Procedure 6(b)(2), which requires “a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.” See Petrucelli, 46 F.3d at 1312 (Becker, J., concurring in part and dissenting in part). Thus, while the prejudice may tip the “good cause” scale, the primary focus is on the plaintiffs reasons for not complying with the time limit in the first place. Such “justifications” are conspicuously absent in the district court’s oral decision and its subsequent written order. Moreover, the briefs to this court are silent on this issue and the parties have therefore not assisted in divining the “good cause” that the district court found. In addition, our review of the entire record has uncovered only one reference to the “good cause” which the court may have felt supported late service. In MCI’s brief in opposition to Teleconcepts’ motion to dismiss MCI states: good cause is shown because service could not be made at the address given as the registered address for service of process at the time the complaint was filed. It was necessary to make additional attempts at service by locating another address and requesting an alias summons. App. at 35. Even if we were to speculate and conclude that this was the basis for the district court’s finding of “good cause,” we would have to conclude that it was an abuse of discretion. The summons was returned unserved on February" }, { "docid": "22228978", "title": "", "text": "1992. Service of process was eventually achieved at this alternate address on June 25, 1992, well over a month after the 120 days prescribed by Rule 4(j) had lapsed. MCI never made a request for an extension of time. The district court found that “good cause” excused the late service, and denied Teleconcepts’ motion to dismiss the complaint. Our review of the district court’s finding of “good cause” is for an abuse of discretion. See Lovelace v. Acme Markets, Inc., 820 F.2d 81, 83 (3d Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987); Braxton v. United States, 817 F.2d 238, 242 (3d Cir.1987). The district court did not articulate the factor(s) it believed constituted “good cause.” The court initially orally denied Teleconcepts’ motion to dismiss during the following exchange in a telephone conference: THE COURT: All right. Now, the defendant moved to dismiss the complaint pursuant to Rule 4(j), which provides for dismissal unless good cause be shown. I would like to hear from the defendant before I rule. MR. REILLY: Your Honor, after I received the response from the plaintiff regarding my client’s address as 51 Everett Street in Princeton, he informed me that that’s been his address. I understand that he may not have been there at the time when the Sheriff initially went out. The problem I have with the argument is that they did serve him eventually at another— at his residence. THE COURT: Yes. MR. REILLY: And that was some four months after the initial issuance of the summons and complaint, which I still feel is an inordinate amount of time— THE COURT: Well, I’ve seen no prejudice. The remedy if good cause were not shown would be dismissal without prejudice and re-service. Under the circumstances, I certainly find good cause has been shown. Motion is denied. The defendant will answer, move or otherwise plead. Subsequently, the district court memorialized this decision in the written order of September 15,1992. In that order, the court stated merely that “good cause” had been shown and that the motion to dismiss was denied" }, { "docid": "23112002", "title": "", "text": "no evidence that Judge Motz intended to grant an extension in either his August 31 or his October 7 correspondence. Mendez argues that because Judge Motz continued to administer the case after the expiration of the 120-day deadline, he must have intended implicitly to grant a Rule 6(b) extension of time to serve the defendants. However, there is no evidence that Judge Motz intended any such thing. Mendez never brought the deadline to Judge Motz’ attention and never requested that the deadline be extended. Thus it was not an abuse of discretion for Judge Chasanow, reviewing this correspondence, to have concluded that Judge Motz had not granted a Rule 6(b) extension and that therefore the service effected 177 days after the filing of the complaint was untimely. We fail to find any appreciable difference between this case and Braxton v. United States, 817 F.2d 238 (3d Cir.1987). In Braxton, the Third Circuit affirmed the district court’s dismissal for untimely service of process, despite a letter from the district judge’s clerk after the 120-day deadline had passed directing the plaintiff to ‘“take the steps necessary to have service made within fifteen (15) days from the date of this letter in accordance with Rule 4(j).’ ” Id. at 239. The letter concluded by stating that “ ‘[i]f service is not made within the time set forth above, the Court will consider dismissal of the action....’” Id. The Third Circuit noted that the district court’s letter could not have prejudiced the plaintiff because the time for service had already expired when the letter was written. The court also rejected the plaintiffs contention that the letter constituted an automatic extension of the deadline for service, because “the rule provides for an extension of time only for good cause.” Id. at 242. We are unable to say that Judge Motz’ order can be distinguished from the clerk’s letter in Braxton. Even if we were to reach the question of whether Judge Chasanow was clearly erroneous in finding that good cause had not been shown, we would still affirm. Rule 4(m) requires that good cause be" }, { "docid": "1607045", "title": "", "text": "provisions of the New Jersey state constitution represent distinct and independent causes of action. See, e.g., Potts v. City of Philadelphia, 2002 WL 2003056 (E.D.Pa. August 29, 2002). The Court will therefore deny Defendants’ motion to strike the state law claims contained in Count I of Plaintiffs Amended Complaint. IV. DEFENDANT CARSON DUNBAR’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 4(m) Defendant Carson Dunbar contends that Count Four of Plaintiffs Amended Complaint which seeks prospective injunctive relief against him in his capacity as Superintendent of the New Jersey State Police should be dismissed because he has never been properly served with a summons and a copy of the complaint in this action as required by Federal Rule of Civil Procedure 4(m). Rule 4(m) provides in pertinent 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. The Third Circuit has construed Rule 4(m) as requiring a court to extend time for service where the plaintiff demonstrates good cause. See McCurdy v. Amer. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir.1998); Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir.1995). For purposes of Rule 4(m), “good cause” has been defined as being tantamount to “excusable neglect,” under Fed. R. Civ.P. 6(b)(2), which requires “a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.” MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097. (3d Cir.1995). Because the “primary focus” in determining whether good cause exists “is on the plaintiffs reasons for not complying with the time limit in the first place,” the “[a]bsence of prejudice alone can never" }, { "docid": "22228982", "title": "", "text": "28, 1992. MCI learned of Teleconcepts’ alternative address as early as March 12,1992, and requested an alias summons on or about that same date. Inexplicably, the summons was not forwarded for service until on or about May 29,1992, and not served at this alternate address until June 25, 1992, well beyond the time limit prescribed by Rule 4(j). MCI never moved for an extension of time. Nothing on this record explains why it took MCI over three months after it learned of Teleconcepts’ alternate address to serve Teleconcepts. Moreover, the record does not explain why MCI never filed a motion to enlarge the time to serve. See Lovelace, 820 F.2d at 85 (alternative means of service and the ability to extend the time indicate a lack of diligence and weigh against a finding of good cause). Since we are presented with no explanations as to what, if any, circumstances constitute sufficient “good cause” to excuse MCI’s apparent lack of diligence, we hold that the district court abused its discretion in finding that good cause existed to excuse the late service. See Braxton, 817 F.2d at 242 (good cause does not exist when there is an “unexplained delinquency on the part of the process server and lack of oversight by counsel”). Reversal of a district court’s finding that good cause existed to excuse late service results in the dismissal of an action, but such dismissal is without prejudice to the plaintiff. Accordingly, the party can refile the complaint and receive a new 120 day period to serve process. See Petrucelli, 46 F.3d at 1304 n. 6. However, as of December 1,1993, Rule 4(j) was amended and redesignated Rule 4(m). Rule 4(m) provides, in part, that: 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 effectuated within a specified time; provided that if the plaintiff shows good cause for the" }, { "docid": "18408364", "title": "", "text": "Elevator and Truck Co., 816 F.2d 877, 881-83 (3d Cir.1987); Stranahan Gear Co., Inc. v. NL Industries, Inc., 800 F.2d 53, 56-57 (3d Cir.1986). Defendant’s motion to set aside the default will be granted. B. Defendant’s Motion To Enjoin Enforcement Of The Judgment Defendant also moves for a preliminary injunction forbidding efforts by plaintiff to collect on its default judgment. (D.I. 11 at 2, 7-9.) In the previous section of this opinion the Court set aside the default judgment. There is thus no need to enjoin its enforcement; the motion is denied as moot. C. Defendant’s Motion To Dismiss Fed.R.Civ.P. 4(j) provides: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice____ Id. (emphasis added). The United States’ complaint against defendant Nuttall was filed October 9, 1987. (D.I. 1.) Process was not served upon defendant within the prescribed 120 days, as once extended until May 4, 1988, by order of this Court. (D.I. 3.) Indeed, defendant is yet to be properly served. Defendant now moves to dismiss the action for failure to effect timely service pursuant to Fed.R.Civ.P. 4(j). (D.I. 11 at 6-7.) At issue is whether plaintiff's failure to timely serve defendant was for good cause. The presence or absence of good cause for an enlargement of time to effect service is a matter of discretion for a district court. Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 514, 516-17 (3d Cir.1988); Braxton v. United States, 817 F.2d 238, 242 (3d Cir.1987). Although the Federal Rules of Civil Procedure nowhere define “good cause,” courts have considered three factors in determining the existence of good cause. The first factor is whether the delay in service results from mere inadvertence, or conversely whether the plaintiff made a reasonable effort to effect service. Gordon v. Hunt, 116 F.R.D. 313, 319 (S.D.N.Y.1987), aff'd, 835 F.2d" }, { "docid": "22228983", "title": "", "text": "to excuse the late service. See Braxton, 817 F.2d at 242 (good cause does not exist when there is an “unexplained delinquency on the part of the process server and lack of oversight by counsel”). Reversal of a district court’s finding that good cause existed to excuse late service results in the dismissal of an action, but such dismissal is without prejudice to the plaintiff. Accordingly, the party can refile the complaint and receive a new 120 day period to serve process. See Petrucelli, 46 F.3d at 1304 n. 6. However, as of December 1,1993, Rule 4(j) was amended and redesignated Rule 4(m). Rule 4(m) provides, in part, that: 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 effectuated 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). We recently addressed the significance of this amendment in Petrucelli v. Bohringer, supra. There, we read Rule 4(m) “to require a court to extend time if good cause is shown and to allow a court discretion to dismiss or extend time absent a showing of good cause.” Petrucelli, 46 F.3d at 1305. Here the statute of limitations is in issue. In Petrucelli, we emphasized that the expiration of the statute of limitations does not require the court to extend the time for service, as the court has discretion to dismiss the case even if the refiling of the action is barred. See id. at 1306. We also noted that Rule 4(m) should apply retroactively, to all matters pending at the time it became effective “insofar as just and practicable.” Id. at Í305 (quoting The Order of the United States Supreme Court Adopting and Amending the Federal Rules of Civil Procedure (April 22, 1993)). Here, such retroactive application is both just" }, { "docid": "23521371", "title": "", "text": "restricted driver’s license. After the court reinstated the case on November 25, Geiger’s counsel asked McClurg Court Associates (McClurg), Allen’s former employer and a co-defendant, for Allen’s address. After four such requests, McClurg provided Geiger’s counsel with the address during the week of January 5, 1987. On January 9,1987, when the action had been pending for 143 days, Geiger’s counsel finally mailed copies of the summons and complaint to Allen. Allen subsequently moved that the court dismiss Geiger’s suit for noncompliance with Federal Rule of Civil Procedure 4(j). On June 9, 1987, the district court issued a memorandum opinion granting Allen’s motion to dismiss without prejudice, from which Geiger appeals. We have jurisdiction over this appeal pursuant to Fed.R. Civ.P. 54(b) and 28 U.S.C. § 1291 (1982). II. DISCUSSION Federal Rule of Civil Procedure 4(j) provides: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. As the Ninth Circuit explained, “[t]he rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action.” Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985). Thus, Congress drafted the rule so that dismissal is manda tory if a defendant is not served within 120 days, unless the plaintiff can show good cause for the delay. Braxton v. United States, 817 F.2d 238, 240 (3d Cir.1987); Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir.1985); see 1982 U.S.Code Cong. & Admin.News 4434, 4441. First, Geiger argues that Rule 4(j) does not apply to this case because Allen was actually served with process. Geiger contends that Rule 4(j) applies only to situations in which the 120-day period has run and the defendant has not been served. Because Geiger’s counsel mailed a copy of the summons" }, { "docid": "22228977", "title": "", "text": "upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. Fed.R.Civ.P. 4(j). The district court was thus required to dismiss MCI’s action if process was not served within 120 days of the filing of the complaint unless MCI could show good cause for the delinquency. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1304 (3d Cir.1995). MCI filed its initial summons and complaint on January 15,1992. The papers were returned unserved by the Mercer County Sheriffs Department marked “unable to locate, unknown at address given” on February 25, 1992. MCI requested an alias summons on or about March 12, 1992, after it discovered another address for service. The alias summons was returned on an “unknown date” and forwarded for service on or about May 29, 1992. Service of process was eventually achieved at this alternate address on June 25, 1992, well over a month after the 120 days prescribed by Rule 4(j) had lapsed. MCI never made a request for an extension of time. The district court found that “good cause” excused the late service, and denied Teleconcepts’ motion to dismiss the complaint. Our review of the district court’s finding of “good cause” is for an abuse of discretion. See Lovelace v. Acme Markets, Inc., 820 F.2d 81, 83 (3d Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987); Braxton v. United States, 817 F.2d 238, 242 (3d Cir.1987). The district court did not articulate the factor(s) it believed constituted “good cause.” The court initially orally denied Teleconcepts’ motion to dismiss during the following exchange in a telephone conference: THE COURT: All right. Now, the defendant moved to dismiss the complaint pursuant to Rule 4(j), which provides for dismissal unless good cause be shown. I would like to hear from the defendant before I rule. MR." }, { "docid": "22228981", "title": "", "text": "the first place. Such “justifications” are conspicuously absent in the district court’s oral decision and its subsequent written order. Moreover, the briefs to this court are silent on this issue and the parties have therefore not assisted in divining the “good cause” that the district court found. In addition, our review of the entire record has uncovered only one reference to the “good cause” which the court may have felt supported late service. In MCI’s brief in opposition to Teleconcepts’ motion to dismiss MCI states: good cause is shown because service could not be made at the address given as the registered address for service of process at the time the complaint was filed. It was necessary to make additional attempts at service by locating another address and requesting an alias summons. App. at 35. Even if we were to speculate and conclude that this was the basis for the district court’s finding of “good cause,” we would have to conclude that it was an abuse of discretion. The summons was returned unserved on February 28, 1992. MCI learned of Teleconcepts’ alternative address as early as March 12,1992, and requested an alias summons on or about that same date. Inexplicably, the summons was not forwarded for service until on or about May 29,1992, and not served at this alternate address until June 25, 1992, well beyond the time limit prescribed by Rule 4(j). MCI never moved for an extension of time. Nothing on this record explains why it took MCI over three months after it learned of Teleconcepts’ alternate address to serve Teleconcepts. Moreover, the record does not explain why MCI never filed a motion to enlarge the time to serve. See Lovelace, 820 F.2d at 85 (alternative means of service and the ability to extend the time indicate a lack of diligence and weigh against a finding of good cause). Since we are presented with no explanations as to what, if any, circumstances constitute sufficient “good cause” to excuse MCI’s apparent lack of diligence, we hold that the district court abused its discretion in finding that good cause existed" }, { "docid": "23522744", "title": "", "text": "CHOY, Circuit Judge: Eric D. Boudette appeals the dismissal of his action for failure to serve the complaint within 120 days after its filing, as required by Federal Rules of Civil Procedure 4©. Boudette contends that the district court abused its discretion in dismissing his action because he could not show good cause for ■ his failure to comply' with Rule 4(j). We affirm. This is the second time that Boudette has had an action making similar allegations dismissed for failure to comply with Fed.R. Civ.P. 4(j). After his first action was dismissed on January 19, 1989, Boudette lodged a second complaint with thé district court on January 25, 1989, and filed a motion for leave to proceed in forma pauperis (“IFP”). On February 24, 1989, the motion for IFP status was granted, and the second complaint was filed. IFP status entitled Boudette, inter alia, to have the United States bear some of the costs of his suit. Under Fed.R.Civ.P. 4© and 6(a), service of the complaint was required by June 26, 1989. Boudette did inform the United States Attorney of the second complaint in April 1989. However, he failed to serve the complaint by June 26, 1989. Instead, on August 15, 1989, Boudette filed a motion for enlarging the time for service, pursuant to Fed.R.Civ.P. 6(b)(2). On September 6, 1989, the district court denied Boudette’s motion for enlargement of time and dismissed the action pursuant to Rule 4(j). The order was filed and judgment was entered on September 11. Boud-ette filed a timely notice of appeal on October 11, 1989. In order to avoid dismissal for failure to serve the complaint and summons within 120 days after filing, as prescribed by Fed.R.Civ.P. 4©, a plaintiff must show “good cause.” Fimbres v. United States, 833 F.2d 138, 139 (9th Cir.1987); Fed.R. Civ.P. 4(j). At a minimum, “good cause” means excusable neglect. A plaintiff may also be required to show the following: (a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his" }, { "docid": "23364073", "title": "", "text": "12(b)(5) for failure to serve process within 120 days. On March 4, 1996, Boley moved the court for an extension of time to serve pursuant to Fed.R.Civ.P. 4(m). The district court denied Boley’s motion to extend time and granted Kaymark’s motion to dismiss the complaint on August 29, 1996. Boley timely filed this appeal. The district court had jurisdiction under 28 U.S.C. § 1332, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. DISCUSSION We review the district court’s denial of a Rule 4(m) motion to extend time to serve for abuse of discretion. Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 (3d Cir.1996). The determination whether to extend time involves a two-step inquiry. Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir.1995). The district court first determines whether good cause exists for a plaintiffs failure to effect timely service. If good cause exists, the extension must be granted. Id.; see also, Fed.R.Civ.P. 4(m). If good cause does not exist, the district court must consider whether to grant a discretionary extension of time. MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir.1995), cert. denied, - U.S. -, 117 S.Ct. 64, 136 L.Ed.2d 25 (1996). A Mandatory Extension for Good Cause The district court found that good cause had not been shown for Boley’s failure to effect timely service. In determining whether good cause exists, a court’s “primary focus is on the plaintiffs reasons for not complying with the time limit in the first place.” Id. at 1097. Nothing in the record before the district court justified Boley’s ineffective attempts at service and his failure to make a timely motion for an extension of time; as in MCI, the district court was “presented with no explanations as to what, if any, circumstances constitute sufficient ‘good cause’ to excuse [plaintiff’s] apparent lack of diligence.” Id. The district court therefore did not abuse its discretion in finding that good cause had not been shown. B. Discretion to Extend Time for Service The district court acknowledged that even in the absence of good cause, Rule" }, { "docid": "22228976", "title": "", "text": "a delinquent telephone bill falls within these limited instances. Id. at 1022-23. The court held that for these same reasons § 1337 did not confer federal question jurisdiction, and that plaintiffs action for breach of contract or quantum meru-it was a creature of state law. We are not persuaded by the analysis in Credit Builders. MCI’s action is based upon, and draws its life from, the tariff that MCI filed with the Federal Communications Commission. The reasoning of Ivy Broadcasting, and the analogous cases decided under the Commerce Act, see Thurston and Rice, supra, persuade us that the district court did have subject matter jurisdiction over MCI’s action, and Teleconcepts’ counterclaim. However, there are other jurisdictional problems with that counterclaim which we discuss in more detail below. C. Late Service of the Complaint When the district court denied Telecon-cepts’ motion to dismiss for failure to timely serve the complaint, Federal Rule of Civil Procedure 4(j) read in pertinent part: Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. Fed.R.Civ.P. 4(j). The district court was thus required to dismiss MCI’s action if process was not served within 120 days of the filing of the complaint unless MCI could show good cause for the delinquency. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1304 (3d Cir.1995). MCI filed its initial summons and complaint on January 15,1992. The papers were returned unserved by the Mercer County Sheriffs Department marked “unable to locate, unknown at address given” on February 25, 1992. MCI requested an alias summons on or about March 12, 1992, after it discovered another address for service. The alias summons was returned on an “unknown date” and forwarded for service on or about May 29," } ]

[ { "docid": "13169863", "title": "", "text": "expressions of friendship and goodwill for co-workers are permissible, but in order to protect employees from too frequent collections for such purposes written permission for such solicitation must be obtained from the store manager or personnel manager. Any violations of the Company No Solicita- tion rule should be reported at once to your immediate supervisor or a store staff member. . The no-solicitation rule bans solicitation by nonemployees only in the store and other store buildings. Although technically trespassers, the union organizers were apparently not acting in violation of the rule as posted when they distributed literature outside the store. . In Hudgens, which involved picketing, the employer urged that Babcock & Wilcox controlled; the union argued that a statutory standard (not Babcock & Wilcox) governed, since the activity in question was not organizational; and the Board urged that a first amendment standard should be applied. In its remand to consider the case under the statutory criteria alone, the Court apparently identified the Babcock & Wilcox standard with those criteria, but directed the Board to take account of the relevance of the fact, among others, that strike activity rather than organizational conduct was involved. 424 U.S. at 522-23, 96 S.Ct. at 1037-38. . Although Babcock & Wilcox commands that “if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property,” 351 U.S. 105, 113, 76 S.Ct. 679, 684, 100 L.Ed. 975, this case was not argued as an “access” case under Babcock & Wilcox. We have doubts whether reasonable efforts by the union would in fact have enabled it to reach the employees with its message; at least, the difficulties would have been very substantial. Since the parties have not posed the issue exactly in these terms, however, we do not decide what the outcome would have been on the issue of access alone. Nonetheless, in accordance with our reading of Babcock & Wilcox, discussed above, access is an important factor" } ]

[ { "docid": "22105995", "title": "", "text": "the minimum wage, and to oppose those who oppose it, fairly is characterized as concerted activity for the “mutual aid or protection” of petitioner’s employees and of employees generally. In sum, we hold that distribution of both the second and the third sections of the newsletter is protected under the “mutual aid or protection” clause of § 7. B The question that remains is whether the Board erred in holding that petitioner’s employees may distribute the newsletter in nonworking areas of petitioner’s property during nonworking time. Consideration of this issue must begin with the Court’s decisions in Republic Aviation Corp. v. NLRB, supra, and NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956). In Republic Aviation the Court upheld the Board’s ruling that an employer may not prohibit its employees from distributing union organizational literature in nonworking areas of its industrial property during non working time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production. This ruling obtained even though the employees had not shown that distribution off the employer’s property would be ineffective. 324 U. S., at 798-799, 801. In the Court’s view, the Board had reached an acceptable “adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments.” Id., at 797-798. In Babcock & Wilcox, on the other hand, nonemployees sought to enter an employer’s property to distribute union organizational literature. The Board applied the rule of Republic Aviation in this situation, but the Court held that there is a distinction “of substance” between “rules of law applicable to- employees and those applicable to nonem-ployees.” 351 U. S., at 113. The difference was that the nonemployees in Babcock & Wilcox sought to trespass on the employer’s property, whereas the employees in Republic Aviation did not. Striking a balance between § 7 organizational rights and an employer’s right to keep strangers from entering on its property, the Court held that the employer in Babcock & Wilcox was entitled to prevent “nonemployee distribution" }, { "docid": "16522776", "title": "", "text": "and solicitations by others in the mall without violating section 8(a)(1) of the NLRA.” Id. at 461-62. The Court answered the question in the affirmative. Id. The Court held that the owner of private commercial premises may forbid handbill-ing by “nonemployee union organizers engaged in non-organizational, informational activity directed at the general public.... ” Id. at 464. Relying on Lechmere, the Court held that the only exception to this rule is where the union shows that “it is entitled to trespass on the owner’s private property because the inaccessibility to the general public to which the handbilling is directed makes ineffective the reasonable attempts by non-employees to communicate with [the public] through the usual channels.” Id. (citing Lechmere, 502 U.S. at 537, 112 S.Ct. 841). In CREP, the Board argued that Lech-mere was not relevant inasmuch as Lech-mere failed to analyze Babcock & Wilcox’s discrimination exception, because CREP “discriminated against the union by permitting other solicitation by charities.” Id. at 464. This Court disagreed that Lechmere did not apply, but more importantly for purposes of the instant case, it held that under Babcock & Wilcox and its progeny, such as Lechmere, “which weigh heavily in favor of private property rights,” the word “discrimination” does not carry the weight the Board ascribes to it. Id. at 465. The Court explained that “[t]o discriminate in the enforcement of [an employer’s] no-solicitation policy cannot mean that an employer commits an unfair labor practice if it allows the Girl Scouts to sell cookies, but is shielded from the effect of the Act if it prohibits them from doing so.” Id. The Court recognized that since Bab-cock & Wilcox was decided, the Supreme Court had never “clarified” the term discriminate. Id. Further, while this Court in CREP acknowledged that we generally should be respectful of the Board’s interpretation of the term “discrimination,” this Court also explained that the Board’s decision is owed no deference where it “rests on erroneous legal foundations.” Id. In that vein, this Court held that “[n]o relevant labor policies are advanced by requiring employers to prohibit charitable solicitations in order to" }, { "docid": "20778371", "title": "", "text": "the employer’s property, whereas the employees in Republic Aviation did not. Striking a balance between § 7 organizational rights and an employer’s right to keep strangers from entering on its property, the Court held that the employer in Babcock & Wilcox was entitled to prevent “nonemployee distribution of union literature [on its property] if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message.” Eastex, 437 U.S. at 571, 98 S.Ct. 2505 (quoting Babcock, 351 U.S. at 112, 113, 76 S.Ct. 679) (emphasis added and citations omitted). Following Eastex and seizing on the Court’s balancing language from Hudgens, the Board in 1988 reformulated its approach to no-access policies, once again adopting a single balancing test for assessing the validity of no-access policies gener•ally, whether enforced against employees or nonemployees. See Jean Country, 291 N.L.R.B. 11, 14 (1988) (“[I]n all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against the degree of impairment of the private property right if access should be granted. We view the consideration of the availability of reasonably effective alternative means as especially significant in this balancing process.”). When the Board applied this test to strike down an employer’s application of its parking-lot no-access policy to nonemployee union organizers, the Court in Lechmere intervened. Noting that “[b]y its plain terms, ... the NLRA confers rights only on employees, not on unions or their nonemployee organizers,” Lechmere, 502 U.S. at 532, 112 S.Ct. 841, the Court recast Babcock in Chevron terms: In Babcock, ... we held that the Act drew a distinction “of substance” between the union activities of employees and nonemployees. In cases involving employee activities, we noted with approval, the Board “balanced the conflicting interests of employees to receive information on self-organization on the company’s property from fellow employees during nonworking time, with the employer’s right to control the use of his property.” In eases involving nonem-ployee activities (like those at issue in Babcock itself), however, the Board was" }, { "docid": "20778369", "title": "", "text": "remand from Hudgens, the Court acknowledged that the underlying facts differed from those in Babcock “in several respects which may or may not be relevant in striking the proper balance,” including that the alleged trespass “was carried on by Butler’s employees (albeit not employees of its shopping center store), not by outsiders.” Hudgens, 424 U.S. at 522, 96 S.Ct. 1029. On the other hand, the Court hinted that access rights might depend on one’s status as a trespasser or invitee. Distinguishing Babcock from Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), an earlier case in which the Court had affirmed a Board ruling that an employer may not prohibit distribution of organizational literature by employees in nonworking areas during non-work time absent a showing that the ban was necessary to maintain plant discipline or production, the Court remarked: “A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer’s property, since the employer’s management interests rather than his property interests were there involved.” Hudgens, 424 U.S. at 521-22 n. 10, 96 S.Ct. 1029. In Eastex, Inc. v. NLRB, 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978), the Court again addressed the invitee/trespasser distinction. The underlying facts in Eastex resembled those of Republic Avia-tiorir-the employer had prohibited employees from distributing a union newsletter in nonworking areas during nonwork time. The Board ruled that the prohibition constituted an unfair labor practice, because the employer had failed to demonstrate sufficiently special circumstances to justify the ban. The Fifth Circuit affirmed. In upholding the Board’s decision, the Court explained the underlying concerns driving the different outcomes in Babcock and Republic Aviation: In Babcock & Wilcox, ... nonemployees sought to enter an employer’s property to distribute union organizational literature. The Board applied the rule of Republic Aviation in this situation, but the Court held that there is a distinction “of substance” between “rules of law applicable to employees and those applicable to nonemployees.” The difference was that the nonemployees in Babcock & Wilcox sought to trespass on" }, { "docid": "22113326", "title": "", "text": "308 (1968), the First Amendment protected such activities. In both cases we rejected the First Amendment claims, and in Hudgens we made it clear that Logan Valley was overruled. Having decided the cases on constitutional grounds, we remanded them to the Board for consideration of the union supporters’ §7 claims under Babcock. In both cases, we quoted approvingly Babcock’s admonition that accommodation between employees’ § 7 rights and employers’ property rights “must be obtained with as little destruction of one as is consistent with the maintenance of the other,” 351 U. S., at 112. See Central Hardware, supra, at 544; Hudgens, supra, at 521, 522. There is no hint in Hudgens and Central Hardware, however, that our invocation of Babcock’s language of “accommodation” was intended to repudiate or modify Bab-cock’s holding that an employer need not accommodate non-employee organizers unless the employees are otherwise inaccessible. Indeed, in Central Hardware we expressly noted that nonemployee organizers cannot claim even a limited right of access to a nonconsenting employer’s property until “[a]fter the requisite need for access to the employer’s property has been shown.” 407 U. S., at 545. If there was any question whether Central Hardware and Hudgens changed § 7 law, it should have been laid to rest by Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180 (1978). As in Central Hardware and Hudgens, the substantive § 7 issue in Sears was a subsidiary one; the case’s primary focus was on the circumstances under which the NLRA pre-empts state law. Among other things, we held in Sears that arguable § 7 claims do not pre-empt state trespass law, in large part because the trespasses of nonemployee union organizers are “far more likely to be unprotected than protected,” 436 U. S., at 205; permitting state courts to evaluate such claims, therefore, does not “create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board’s decision, would find protected,” ibid. This holding was based upon the following interpretation of Babcock: “While Babcock indicates that an employer may not always bar nonemployee union organizers from" }, { "docid": "20778365", "title": "", "text": "Despite the fact that Babcock, and more recently Lechmere, speak formally of the differing access rights guaranteed “employees” versus “nonemployees,” ITT maintains that the two cases in actuality establish a functional distinction between the access rights guaranteed “invitees” versus “trespassers.” In other words, ITT contends that, because “non-employee” in the Babcock formulation is merely a proxy for “trespasser,” the Board’s application of the Tri-County test to trespassing off-site employees runs afoul of Chevron step one. We do mot agree that the Court’s decisions are so clear. Babcock was itself a response to the Board’s then-policy of assessing all parking-lot no-access rules under the same balancing test, regardless of whether the rule barred access of employees or nonemploy-ee union organizers. Though the Court acknowledged the deference normally owed the Board, it nonetheless faulted the Board for “failfing] to make a distinction between rules of law applicable to employees and those applicable to nonemployees.” Babcock, 351 U.S. at 112, 76 S.Ct. 679 (emphasis added). Calling the distinction “one of substance,” the Court held: No restriction may be placed on the employees’ right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline. But no such obligation is owed nonemployee organizers. Their access to company property is governed by a different consideration. The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. Id. at 113, 76 S.Ct. 679 (citations omitted). In other words, nonemployees’ access rights are merely derivative of on-site employees’ organizational rights; nonemploy-ees enjoy no independent, free-standing § 7 right of access. See Sears, Roebuck & Co. v. San Diego County Disk Council of Carpenters, 436 U.S. 180, 206 n. 42, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). Though the Court did not explicitly contemplate the problem of the" }, { "docid": "20778370", "title": "", "text": "interests were there involved.” Hudgens, 424 U.S. at 521-22 n. 10, 96 S.Ct. 1029. In Eastex, Inc. v. NLRB, 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978), the Court again addressed the invitee/trespasser distinction. The underlying facts in Eastex resembled those of Republic Avia-tiorir-the employer had prohibited employees from distributing a union newsletter in nonworking areas during nonwork time. The Board ruled that the prohibition constituted an unfair labor practice, because the employer had failed to demonstrate sufficiently special circumstances to justify the ban. The Fifth Circuit affirmed. In upholding the Board’s decision, the Court explained the underlying concerns driving the different outcomes in Babcock and Republic Aviation: In Babcock & Wilcox, ... nonemployees sought to enter an employer’s property to distribute union organizational literature. The Board applied the rule of Republic Aviation in this situation, but the Court held that there is a distinction “of substance” between “rules of law applicable to employees and those applicable to nonemployees.” The difference was that the nonemployees in Babcock & Wilcox sought to trespass on the employer’s property, whereas the employees in Republic Aviation did not. Striking a balance between § 7 organizational rights and an employer’s right to keep strangers from entering on its property, the Court held that the employer in Babcock & Wilcox was entitled to prevent “nonemployee distribution of union literature [on its property] if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message.” Eastex, 437 U.S. at 571, 98 S.Ct. 2505 (quoting Babcock, 351 U.S. at 112, 113, 76 S.Ct. 679) (emphasis added and citations omitted). Following Eastex and seizing on the Court’s balancing language from Hudgens, the Board in 1988 reformulated its approach to no-access policies, once again adopting a single balancing test for assessing the validity of no-access policies gener•ally, whether enforced against employees or nonemployees. See Jean Country, 291 N.L.R.B. 11, 14 (1988) (“[I]n all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against" }, { "docid": "22113332", "title": "", "text": "employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels,” 351 U. S., at 112. Our reference to “reasonable” attempts was nothing more than a commonsense recognition that unions need not engage in extraordinary feats to communicate with inaccessible employees — not an endorsement of the view (which we expressly rejected) that the Act protects “reasonable” trespasses. Where reasonable alternative means of access exist, § 7’s guarantees do not authorize trespasses by nonemployee organizers, even (as we noted in Babcock, ibid.) “under . . . reasonable regulations” established by the Board. Jean Country, which applies broadly to “all access cases,” 291 N. L. R. B., at 14, misapprehends this critical point. Its principal inspiration derives not from Babcock, but from the following sentence in Hudgens: “[T]he locus of th[e] accommodation [between §7 rights and private property rights] may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context.” 424 U. S., at 522. From this sentence the Board concluded that it was appropriate to approach every case by balancing §7 rights against property rights, with alternative means of access thrown in as nothing more than an “especially significant” consideration. As explained above, however, Hud-gens did not purport to modify Babcock, much less to alter it fundamentally in the way Jean Country suggests. To say that our cases require accommodation between employees’ and employers’ rights is a true but incomplete statement, for the cases also go far in establishing the locus of that accommodation where nonemployee organizing is at issue. So long as nonemployee union organizers have reasonable access to employees outside an employer’s property, the requisite accommodation has taken place. It is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and employers’ rights as described in the Hudgens dictum. See Sears, 436 U. S., at 205; Central Hardware, 407 U. S., at 545. At least as applied to nonem-ployees, Jean" }, { "docid": "20778366", "title": "", "text": "placed on the employees’ right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline. But no such obligation is owed nonemployee organizers. Their access to company property is governed by a different consideration. The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. Id. at 113, 76 S.Ct. 679 (citations omitted). In other words, nonemployees’ access rights are merely derivative of on-site employees’ organizational rights; nonemploy-ees enjoy no independent, free-standing § 7 right of access. See Sears, Roebuck & Co. v. San Diego County Disk Council of Carpenters, 436 U.S. 180, 206 n. 42, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). Though the Court did not explicitly contemplate the problem of the trespassing off-site employee, it did note that “[organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is con sistent with the maintenance of the other.” Babcock, 351 U.S. at 112, 76 S.Ct. 679. The Court revisited Babcock twenty years later in Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). Union member warehouse employees of Butler Shoe Company had gone on strike. In addition to picketing the warehouse where they actually worked, the strikers targeted Butler’s nine Atlanta-area retail stores, including one inside the North De-Kalb Shopping Center. The general manager of the shopping center threatened arrest for trespass, after which the union filed unfair labor practice charges. The Board agreed with the union, and the Fifth Circuit affirmed because the mall’s interior no picketing policy violated the First Amendment. The Court reversed on the First Amendment ground, holding instead that “the rights and liabilities of the parties in" }, { "docid": "16522778", "title": "", "text": "preserve the right to exclude nonemployee distribution of union literature when access to the target audience is otherwise available.” Id. The Court noted that the purpose of Section 8(a)(1) of the NLRA is to prevent employers from interfering with employees’ Section 7 rights. Id. Bearing such considerations in mind, the Court reasoned that: An owner of a private commercial property who permits a charitable organization to distribute information or conduct solicitations on its property simply does not implicate the policies of the NLRA and does not, without more, render an employer guilty of an unfair labor practice when later it chooses to follow the general rule of “validly posting its] property against nonemployee distribution of union literature.” Id. (citing Babcock, 351 U.S. at 112, 76 S.Ct. 679). Such considerations led this Court to hold that the term discrimination, as used in Babcock & Wilcox, means “favoring one union over another, or allowing employer-related information while barring similar union-related information.” Id. In Sandusky, this Court again addressed the discrimination exception in Babcock & Wilcox. The union in San-dusky began a picketing campaign after a store in a mall hired a non-union construction contractor and threatened to handbill another mall tenant for the same reason. 242 F.3d at 684. Sandusky, which owned and operated the mall, notified the union that handbillers would be considered trespassers and that they would be asked to leave. Id. The handbillers distributed handbills in the mall on several occasions and were asked to leave each time. Finally, the mall manager called the police and had the handbillers arrested. Id. at 685. The union filed an unfair labor practice charge against Sandusky, and the Board found that Sandusky had violated the NLRA. Id. On appeal, the Court addressed the specific issue of whether “Sandusky may be compelled to permit non-union employee union members to trespass on the mail’s property for the purpose of distributing handbills urging mall customers not to patronize non-union employers.” Id. Relying on CREP, the Court in Sandusky answered the question in the affirmative. Accord Riesbeck Food Markets, Inc. v. NLRB, No. 95-1766, 95-1917, 1996" }, { "docid": "22113333", "title": "", "text": "at 522. From this sentence the Board concluded that it was appropriate to approach every case by balancing §7 rights against property rights, with alternative means of access thrown in as nothing more than an “especially significant” consideration. As explained above, however, Hud-gens did not purport to modify Babcock, much less to alter it fundamentally in the way Jean Country suggests. To say that our cases require accommodation between employees’ and employers’ rights is a true but incomplete statement, for the cases also go far in establishing the locus of that accommodation where nonemployee organizing is at issue. So long as nonemployee union organizers have reasonable access to employees outside an employer’s property, the requisite accommodation has taken place. It is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and employers’ rights as described in the Hudgens dictum. See Sears, 436 U. S., at 205; Central Hardware, 407 U. S., at 545. At least as applied to nonem-ployees, Jean Country impermissibly conflates these two stages of the inquiry — thereby significantly eroding Bab-cock’s general rule that “an employer may validly post his property against nonemployee distribution of union literature,” 351 U. S., at 112. We reaffirm that general rule today, and reject the Board’s attempt to recast it as a multifactor balancing test. c The threshold inquiry in this case, then, is whether the facts here justify application of Babcock’s inaccessibility exception. The ALJ below observed that “the facts herein convince me that reasonable alternative means [of communicating with Lechmere’s employees] were available to the Union,” 295 N. L. R. B., at 99 (emphasis added). Reviewing the ALJ’s decision under Jean Country, however, the Board reached a different conclusion on this point, asserting that “there was no reasonable, effective alternative means available for the Union to communicate its message to [Lech-mere’s] employees.” Id., at 93. We cannot accept the Board’s conclusion, because it “rest[s] on erroneous legal foundations,” Babcock, supra, at 112; see also NLRB v. Brown, 380 U. S. 278, 290-292 (1965). As" }, { "docid": "22741422", "title": "", "text": "its decision may well result in state-court decisions erroneously prohibiting or curtailing conduct in fact protected by § 7. But it identifies two con siderations that persuade it that the risk of interference is minimal and that, in any case, the risk does not outweigh the anomalous consequence of denying the employer a remedy. The first is its belief that the generic type of activity— which the Court characterizes as trespassory organizational activity by nonemployees — is more likely to be unprotected than protected. Ante, at 205-206. In so concluding, the Court relies on NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956), for the proposition that there is a strong presumption against permitting trespasses by nonemployees. But the Court overlooks a critical distinction between Babcock and the case at bar. Babcock involved a trespass on industrial property which the employer had fenced off from the public at large, and it is a grave error to treat Babcock as having substantial implications for the generic situation presented by this case. To permit trespassory § 7 activities in the Babcock fact pattern entails far greater interference with an employer’s business than does allowing peaceful nonobstructive picketing on a parking lot which is open to the public and which has been used for other types of solicitation. As my Brother Blackmun’s concurring opinion notes, this Court’s short-lived holding that picketing at shopping centers is protected by. the Fourteenth Amendment, see Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), overruled in Hudgens v. NLRB, supra, has resulted in a situation where neither this Court nor the Board has considered, in any comprehensive fashion, the quite different question of the conditions under which union representatives may enter privately owned areas of shopping centers to engage in protected activities such as peaceful picketing. But the Court’s own opinion in Hudgens v. NLRB, supra, and the Board’s decision in Scott Hudgens, supra, both suggest that trespasses in such circumstances will often be protected. Quite apart from the fact the Court has no basis for blithely assuming that all private property is" }, { "docid": "20778368", "title": "", "text": "this case are dependent exclusively upon the National Labor Relations Act.” Id. at 521, 96 S.Ct. 1029. Though the Court ordered remand to allow the Board to decide the § 7 question in the first instance, it described the task facing the Board as follows: The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights “with as little destruction of one as is consistent with the maintenance of the other.” The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. Id. at 522, 96 S.Ct. 1029 (quoting Babcock, 351 U.S. at 112, 76 S.Ct. 679) (emphasis added and citations omitted). The Court equivocated on the proper scope of off-site employee § 7 access rights. Describing the Board’s task on remand from Hudgens, the Court acknowledged that the underlying facts differed from those in Babcock “in several respects which may or may not be relevant in striking the proper balance,” including that the alleged trespass “was carried on by Butler’s employees (albeit not employees of its shopping center store), not by outsiders.” Hudgens, 424 U.S. at 522, 96 S.Ct. 1029. On the other hand, the Court hinted that access rights might depend on one’s status as a trespasser or invitee. Distinguishing Babcock from Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), an earlier case in which the Court had affirmed a Board ruling that an employer may not prohibit distribution of organizational literature by employees in nonworking areas during non-work time absent a showing that the ban was necessary to maintain plant discipline or production, the Court remarked: “A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer’s property, since the employer’s management interests rather than his property" }, { "docid": "22741349", "title": "", "text": "some violations of state trespass laws may be actually protected by § 7 of the federal Act. In NLRB v. Babcock & Wilcox Co., 351 U. S. 105, for example, the Court recognized that in certain circumstances non-employee union organizers may have a limited right of access to an employer’s premises for the purpose of engaging in organization solicitation. And the Court has indicated that Babcock extends to § 7 rights other than organizational activity, though the “locus” of the “accommodation of § 7 rights and private property rights . . . may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context.” Hudgens v. NLRB, 424 U. S. 507, 522. For purpose of analysis we must assume that the Union could have proved that its picketing was, at least in the absence of a trespass, protected by § 7. The remaining question is whether under Babcock the trespassory nature of the picketing caused it to forfeit its protected status. Since it cannot be said with certainty that, if the Union had filed an unfair labor practice charge against Sears, the Board would have fixed the locus of the accommodation at the unprotected end of the spectrum, it is indeed “arguable” that the Union's peaceful picketing, though trespassory, was protected. Nevertheless, permitting state courts to evaluate the merits of an argument that certain trespassory activity is protected does not create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board's decision, would find protected. For while there are unquestionably examples of trespassory union activity in which the question whether it is protected is fairly debatable, experience under the Act teaches that such situations are rare and that a trespass is far more likely to be unprotected than protected. Experience with trespassory organizational solicitation by nonemployees is instructive in this regard. While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule. To" }, { "docid": "22105996", "title": "", "text": "that distribution off the employer’s property would be ineffective. 324 U. S., at 798-799, 801. In the Court’s view, the Board had reached an acceptable “adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments.” Id., at 797-798. In Babcock & Wilcox, on the other hand, nonemployees sought to enter an employer’s property to distribute union organizational literature. The Board applied the rule of Republic Aviation in this situation, but the Court held that there is a distinction “of substance” between “rules of law applicable to- employees and those applicable to nonem-ployees.” 351 U. S., at 113. The difference was that the nonemployees in Babcock & Wilcox sought to trespass on the employer’s property, whereas the employees in Republic Aviation did not. Striking a balance between § 7 organizational rights and an employer’s right to keep strangers from entering on its property, the Court held that the employer in Babcock & Wilcox was entitled to prevent “nonemployee distribution of union literature [on its property] if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message . . . .” Id., at 112. The Court recently has emphasized the distinction between the two cases: “A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer’s property, since the employer’s management interests rather than his property interests were there involved.” Hudgens v. NLRB, 424 U. S., at 521-522, n. 10; see also Central Hardware Co. v. NLRB, 407 U. S., at 543-545. It is apparent that the instant case resembles Republic Aviation rather closely. Here, as there, employees sought to distribute literature in nonworking areas of their employer’s industrial property during nonworking time. Here, as there, the employer has not attempted to show that distribution would interfere with plant discipline or production. And here, as there, distribution of the newsletter clearly would be protected by § 7 against employer discipline if it took place off" }, { "docid": "20778374", "title": "", "text": "professed to define the scope of the term “employee” in Babcock, Hudgens, Republic Aviation, Eastex, or Leehmere. And these eases certainly do not stand for the proposition that all trespassers, whether they be non-employee union organizers or off-site employees, possess only derivative § 7 access rights. Because the Court’s cases do not bespeak a clear answer, and because the statute is silent on the point, we must defer to the Board’s interpretation if reasonable. Before assessing the reasonableness of the Board’s interpretation, we pause to consider the significance of the Eleventh Circuit’s decision in Southern Services, Inc. v. NLRB, 954 F.2d 700 (11th Cir.1992). There, Coca-Cola had enforced a no-access policy against an employee of a janitorial subcontractor who serviced Coca-Cola’s secured industrial complex in Atlanta. The complex was “the only common workplace of the approximately 165 [subcontractor] employees who provide janitorial services to Coca-Cola under subcontract.” Id. at 701. The Board ruled against Coca-Cola, despite the fact that the subcontractor’s employees were technically “nonemployees” vis-á-vis Coca-Cola. The Eleventh Circuit affirmed, reasoning that: Babcock & Wilcox suggests two different routes for analyzing employer rights, which now diverge under this case’s facts. Babcock & Wilcox implied that employers may restrict distribution by nonemployee organizers for the reason that those organizers are trespassers. Yet the holding addressed the section 7 rights of nonemployees-a category of persons who are not necessarily trespassers on the employer’s premises. But dicta in the Supreme Court’s post-Babcock & Wilcox cases indicate that it is the organizer’s status as a trespasser or stranger to the employee’s property, rather than the nonem-ployee status, that invokes the employer’s property right to restrict premises distribution by the organizer. Id. at 703 (citations omitted). Of course that decision as the opinion of another circuit is not binding here. Moreover, Southern Services issued only one month after Leehmere and contains no reference to the Supreme Court’s decision. The Eleventh Circuit’s opinion thus has limited persuasive value-it does not account for Lechmere’s, express reaffirmation of the employee/nonemployee distinction, particularly its reliance on statutory mention of the term “employee.” In any event, nothing in Southern" }, { "docid": "13169850", "title": "", "text": "at hand, the Board considered the various interests involved and mandated an accommodation which would allow solicitation by nonemployees in the Buffeteria when such organizational activity was carried on in a nondisruptive fashion consistent with the normal use of the restaurant. Our task is limited to reviewing whether the record contains substantial evidence to support those findings. Beth Israel Hospital v. NLRB, 437 U.S. at 507, 98 S.Ct. at 2476, citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). We conclude that it does. On the one hand, the weight of the employees’ interest here is substantially increased by the fact that there are major obstacles to access to them by union organizers. The setting is a large shopping mall surrounded by highways. Presumably it would be difficult to follow the employees to their homes. The employees usually eat on the premises and have only a one-half hour break for lunch; the nearest restaurant facilities are a ten minute walk. The union was not given a list of the names of credit center employees and could not identify their cars in the parking lot. On the other hand, the employer’s legitimate property interests, in the circumstances of this case, are minimally implicated. The union organizers became “trespassers” not because of anything about their activities inconsistent with normal use of the Buffeteria but because Montgomery Ward managers discovered their identity, intervened in their conversations and invoked the no-solicitation rule. The organizers presumably would be invitees rather than trespassers to the extent that they merely entered the Buffeteria to have lunch with acquaintances. Thus the employer’s interests are almost exclusively managerial: the prevention of disruption of business and of inconvenience to customers or to other employees. And under the circumstances here, it does not seem that these interests were affected at all. The organizers and employees were in no way distinguishable from other members of the general public. Their conduct was consistent with that of the other Buffeteria patrons. They conversed in voices inaudible to the other patrons; they did not attempt to" }, { "docid": "20778375", "title": "", "text": "Wilcox suggests two different routes for analyzing employer rights, which now diverge under this case’s facts. Babcock & Wilcox implied that employers may restrict distribution by nonemployee organizers for the reason that those organizers are trespassers. Yet the holding addressed the section 7 rights of nonemployees-a category of persons who are not necessarily trespassers on the employer’s premises. But dicta in the Supreme Court’s post-Babcock & Wilcox cases indicate that it is the organizer’s status as a trespasser or stranger to the employee’s property, rather than the nonem-ployee status, that invokes the employer’s property right to restrict premises distribution by the organizer. Id. at 703 (citations omitted). Of course that decision as the opinion of another circuit is not binding here. Moreover, Southern Services issued only one month after Leehmere and contains no reference to the Supreme Court’s decision. The Eleventh Circuit’s opinion thus has limited persuasive value-it does not account for Lechmere’s, express reaffirmation of the employee/nonemployee distinction, particularly its reliance on statutory mention of the term “employee.” In any event, nothing in Southern Services is dis-positive of the issue before us in this case. When it is unclear under established law whether a category of workers enjoys free-standing, nonderivative access rights, then a court is obliged to defer to reasonable judgments of the Board in its resolution of eases that have not as yet been resolved by the Supreme Court. We have no doubt that the Board could attempt a justification within the bounds of Babcock, Hudgens, and Leehmere for why § 7 guarantees on-site subcontractor employees-like the SSI janitors at Coca Cola-nonderivative access rights similar to those enjoyed by on-site employees of the firm owning the site. Obviously, this is not a question before us. We make the point only to say that the Board, in the first instance under Chevron step two, must be allowed to define the limits of the NLRA in assessing the legality of no-ac cess, no-solicitation rules not yet considered by the Supreme Court. Although the Court’s access cases do not foreclose the possibility that off-site employees might enjoy some measure of" }, { "docid": "20778373", "title": "", "text": "not permitted to engage in that same balancing (and we reversed the Board for having done so). By reversing the Board’s interpretation of the statute for failing to distinguish between the organizing activities of employees and non-employees, we were saying, in Chevron terms, that § 7 speaks to the issue of nonemployee access to an employer’s property. Babcock's, teaching is straightforward: § 7 simply does not protect nonemployee union organizers except in the rare case where “the inaccessibility of employees makes ineffective the reasonable attempts by nonem-ployees to communicate with them through the usual channels.” Id. at 537, 112 S.Ct. 841 (quoting Babcock, 351 U.S. at 109-10, 112, 113, 76 S.Ct. 679) (citations omitted). The Court thus reaffirmed Babcock’s central thesis that § 7 extends only derivative access rights to nonemployee unipn organizers. The union itself, untethered to a threshold claim that § 7 employee organizational rights had been infringed, could not claim protection. Leehmere and the Court’s cases leading up to it simply do not answer the question before us. The Court never has professed to define the scope of the term “employee” in Babcock, Hudgens, Republic Aviation, Eastex, or Leehmere. And these eases certainly do not stand for the proposition that all trespassers, whether they be non-employee union organizers or off-site employees, possess only derivative § 7 access rights. Because the Court’s cases do not bespeak a clear answer, and because the statute is silent on the point, we must defer to the Board’s interpretation if reasonable. Before assessing the reasonableness of the Board’s interpretation, we pause to consider the significance of the Eleventh Circuit’s decision in Southern Services, Inc. v. NLRB, 954 F.2d 700 (11th Cir.1992). There, Coca-Cola had enforced a no-access policy against an employee of a janitorial subcontractor who serviced Coca-Cola’s secured industrial complex in Atlanta. The complex was “the only common workplace of the approximately 165 [subcontractor] employees who provide janitorial services to Coca-Cola under subcontract.” Id. at 701. The Board ruled against Coca-Cola, despite the fact that the subcontractor’s employees were technically “nonemployees” vis-á-vis Coca-Cola. The Eleventh Circuit affirmed, reasoning that: Babcock &" }, { "docid": "423660", "title": "", "text": "of an employees request for representation violates section 8(a)(1). Resolution of this question depends upon a determination whether the employee’s section 7 right to union representation outweighs an employer’s right to exclude nonemployees from his property. See, e. g., Eastex, supra, 98 S.Ct. at 2515; compare NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), with Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). Our discussion must begin with a review of the Supreme Court’s decision in Babcock & Wilcox Co., supra. In that case, an employer had refused to permit nonemployee union organizers to distribute union literature on company-owned parking lots. The Board had held that this refusal violated section 8(a)(1) because, applying the rationale of an earlier decision, it found that the employer’s action “placed an unreasonable impediment on the freedom of communication essential to the exercise of its employees’ right to self-organization.” Id., 351 U.S. at 110, 76 S.Ct. at 683, quoting LeTourneau Co. of Georgia, 54 N.L.R.B. 1253, 1262, rev’d, 143 F.2d 67 (5th Cir. 1944), rev’d sub nom. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). The Court struck a different balance between the employees’ section 7 organizational rights and the employer’s property rights: It is our judgment, however, that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer’s notice or order does not discriminate against the union by allowing other distribution. Id. at 112, 76 S.Ct. at 684. We believe that the situation in Babcock & Wilcox is analogous to that existing when an employee asks for the presence of a union representative before a representation election has been conducted. Since an employee always has the right to the presence of another employee at an interview, see section IIA supra, an alternative method of obtaining representation exists which is not disruptive of the" } ]

[ { "docid": "660131", "title": "", "text": "an obligation for their support under section 523(a)(5). Id. at 673 (emphasis in original, citations omitted). Similarly, Sullivan featured a defendant/debtor who was the grandmother of two children. 234 B.R. 244. Although it was not clear whether the defendant had been granted legal guardianship or simply custody of the children, the distinction was irrelevant: [ijnasmuch as [Connecticut] state law imposes no financial obligation on the debtor for the support of the children [even if she were the legal guardian], the court concludes that the fees to the guardian ad litem, although imposed on the debtor by order of the probate court, are not in the nature of “support.” Id. at 247. Here, the state court did not name the Defílippis simply as Joe’s guardians. The court’s power to assign parental rights and responsibilities under 19-A M.R.S. § 1653 is “independent of and not preempted by the court’s related but discrete authority pursuant to the Uniform Act on Paternity ...; the adoption provisions of the Maine Probate Code ...; or the child guardianship provisions of the Maine Probate Code....” C.E.W. v. D.E.W., 845 A.2d at 1151. The state court judgment established the Defílippis as Joe’s parents de jure. As far as the State of Maine and the Bankruptcy Code are concerned, the Defi-lippis are Joe’s parents and he is their child. The debt owed to the plaintiff is therefore excepted from discharge pursuant to § 523(a)(5). V. Conclusion For these reasons, Epstein’s claim against the Defílippis is excepted from discharge. . Unless otherwise indicated, citations to statutory sections and to chapter numbers refer to those within the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. §§ 101, et seq. (\"Bankruptcy Code” or \"Code”). . Made applicable to this proceeding by Fed. R.Bankr.P. 9015. . Made applicable to this proceeding by Fed. R.Bankr.P. 7056. . \"Joe” will be employed as a pseudonym for the minor child throughout this memorandum. . A 2006 judgment, which was the subject of their efforts for modification, declared the Defilippis and Ms. LeBlanc to be \"de facto” parents of Joe. That earlier judgment is not part" } ]

[ { "docid": "13605504", "title": "", "text": "by the court unless: (1) the parent or guardian is unable to pay for them; (2) payment would force an unreasonable hardship on the family; or (3) justice would not be served by ordering payment. # * * * * * (e) The juvenile court shall require the parent or guardian of the estate to reimburse the county in a manner that will cause the least hardship. (f) If the parent or guardian of the estate defaults in reimbursing the coun ty, or fails to pay any fee authorized by this article, the juvenile court may find the parent or guardian in contempt and may enter judgment for the amount due (Emphasis added). “The County asserts that the Debtor’s parental duty of support is primarily to the child and that the duty is discharged not by payment directly to the child but by payment to third parties who have furnished services to the child; the child’s right to payment is to have the Debtor-parent reimburse the County for monies expended by it for his support and maintenance; and, since the County acted for the child, the monies would be owed by the child, who though is not the payee, is the obligee. “This case is remarkably similar to a recent Colorado decision, in which the bankruptcy court held that Colorado’s support statute constituted support within the purview of § 523(a)(5). In re Huber, 80 B.R. 531 (Bankr.D.Colo.1987). In Huber, the court held the debt owed by the debtor to the county pursuant to an adjudication of dependency and neglect regarding a minor child of the debtors for foster care support fees, arising from placement of debtor’s minor child in custody of the court was nondischargeable support obligation pursuant to 11 U.S.C. § 523(a)(5). Id. The Huber court based its decision on two Colorado statutes. The First, C.R.S. § 19-1-103(24) concerns residual parental rights. It provides: (24) ‘Residual parental rights and responsibilities’ means those rights and responsibilities remaining with the parent after legal custody, guardianship of the person, or both have been vested in another person, agency, or institution, including, but" }, { "docid": "660124", "title": "", "text": "discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Id. I must scrutinize the legal merit of a summary judgment request to ensure that the relief requested is warranted on the undisputed facts. Chase Manhattan Bank USA, N.A. v. Poor (In re Poor), 219 B.R. 332, 334 (Bankr.D.Me.1998), citing, inter alia, Ramsdell v. Bowles, 64 F.3d 5, 8 (1st Cir.1995) (“summary judgment is appropriate only if the record before the court establishes that the moving party is entitled to judgment as a matter of law.”). III.Facts The Defilippis are paternal grandparents of a minor child, “Joe.” Together, before their bankruptcy, they initiated proceedings in Maine District Court against Joe’s maternal grandmother (“Ms. Le-Blanc”) and her then domestic partner, seeking modification of parental rights for Joe. The basis for their action and the status of Joe’s biological parents are beside the point. What is important is the result: The state court issued judgment on January 2, 2009, establishing “parallel” parental rights and responsibilities for Joe to and among the Defilippis, Ms. LeBlanc, and her partner. Epstein acted as guardian ad litem (“GAL”) for Joe in that proceeding, and was awarded a $4,333 judgment against the Defilippis in compensation for her services. The judgment remains unpaid. The Defilippis do not challenge its validity, its amount, or their liability. Rather, they assert that their obligation to pay it must succumb to their chapter 7 discharge. IV.Analysis Section 523 lists the types of debts that are excepted from a debtor’s chapter 7 discharge. Among these exceptions is a “debt for a domestic support obligation.” 11 U.S.C. § 523(a)(5). A domestic support obligation, in turn, is defined as a debt: (A) owed to or recoverable by— (i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or (ii) a governmental unit; (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former" }, { "docid": "10761547", "title": "", "text": "of the children, the debt was not owed to a child of the debtor. No reported decision has held that a legal guardian to whom a debt for support was owed is dischargeable. Similarly, the Court has not found, and Defendant has not cited, any case decided prior to the enactment of the BAPCPA in which a debt for support owed to a child’s parent or responsible relative was discharged. Hence, the 2005 amendments do not appear to have been enacted to overturn prior decisions that were adverse to guardians, relatives or parents or to narrow the class of persons permitted to enforce support obligations. Under the circumstances described above, the meaning of the words “legal guardian” in the Bankruptcy Code must be grounded in the purpose of the statute. The purpose of sections 101(14A) and 523(a)(5) with respect to a child of a debtor is to protect that child by making a debt for support of the child nondischargeable. In the Rackleys’ case before the Cobb County Superior Court, the guardian ad litem was appointed to protect their child’s interest and legal rights in the face of extremely serious allegations of sexual abuse by Mr. Rackley. The Superior Court found that the child was mentally impaired, suggesting that the child needed legal protection if the allegations were true and, as it turned out, if they were frivolous and false. At stake was the child’s well-being-the ultimate purpose of support. On that issue, the guardian ad litem provided, and was the only person who could provide, support for the child as a disinterested and neutral advocate for the child’s best interest on the issue of which parent was best suited to be his custodian. The Court concludes that a guardian ad litem for a child in custody litigation is a legal guardian for purposes of section 101 (14A) and sections 523(a)(5). d. Cases Relied on by Defendant Not Persuasive. Although Defendant’s motions for summary judgment will not be considered, the Court notes Defendant’s argument that a guardian ad litem is not a person to whom a domestic support obligation can" }, { "docid": "660126", "title": "", "text": "spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated; (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of— (i) a separation agreement, divorce decree, or property settlement agreement; (ii) an order of a court of record; or (iii)a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and (D)not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or responsible relative for the purpose of collecting the debt. 11 U.S.C. § 101(14A). “In order to be excepted from discharge, then, the debt must meet all three prongs of the 523(a)(5) test, namely that it was (1) ‘to a ... child of the debtor;’ (2) incurred for the ‘support’ of the child; and (3) ‘in connection with’ an ‘order of a court of record.’ ” Spear v. Constantine (In re Constantine), 183 B.R. 335, 336 (Bankr.D.Mass.1995). The only issue in dispute is whether Joe constitutes a “child of the debtor[s].” The Defilippis contend that since they are Joe’s biological grandparents, he cannot be their “child” and, therefore, Epstein’s claim is subject to discharge. See, e.g., In re Look, 383 B.R. 210 (Bankr.D.Me.2008) (Congress intends the ordinary meaning of words used in a statute). They would have the court look exclusively at biological relationships. See, e.g., Eliason v. Sullivan (In re Sullivan), 234 B.R. 244 (Bankr.D.Conn.1999), and Ceconi v. Uriarte (In re Uriarte), 215 B.R. 669 (Bankr.D.N.J.1997) (both finding debts owed by grandparents for support of their grandchildren to be dischargeable, emphasizing the plain meaning of “child of the debtor”). Though a biological parent/child relationship may be sufficient to bring a support debt within § 523(a)(5)’s purview, it is not a necessary condition to its operation. Here, a state court judgment provided that the “parental rights and responsibilities of [Joe’s biological parents] are not terminated, but are allocated to the de" }, { "docid": "8415288", "title": "", "text": "if she were their legal guardian, the Connecticut Supreme Court has held that: A guardian of a minor child has no legal obligation of support for that child. This conclusion is compelled by our statutes regarding guardianship, by the common law background of those stat utes, and by the policy undergirding those statutes and that common law.... Thus, for purposes of the financial obligation to support a minor child, a guardian has no greater legal obligation to support his or her ward than a stranger has. The policy behind these longstanding precepts is to protect the interests of minor children who are in need of guardianship protection. If a person, by accepting the obligations of the guardian of a minor child were also held to have the legal responsibility to support the child, the law would discourage the acceptance of such appointment. Such a result would, in the long run, undermine rather than further the interests of minor children.... To conclude otherwise would discourage family members from voluntarily undertaking such [guardianship] obligations and from coming forward to serve as guardians.... It is true, of course, that a guardian of a minor child acts in loco parentis. One of the essential purposes of establishing such a guardianship is that a responsible adult act in that fashion. That does not mean, however, that acting in loco par-entis, which is the essence of a guardianship, imposes on the guardian the legal obligations of support. Favrow v. Vargas, 231 Conn. 1, 18-21, 647 A.2d 731 (1994) (citations omitted). Inasmuch as state law imposes no financial obligation on the debtor for the support of the children, the court concludes that the fees to the guardian ad litem, although imposed on the debtor by order of the probate court, are not in the nature of “support.” V. Because the fees owed by the debtor to Eliason were not incurred on behalf of a “child of the debtor,” and were not in the nature of “support,” the court concludes that they are not excepted from discharge under § 523(a)(5). For the reasons stated above, Eliason’s motion for" }, { "docid": "13605506", "title": "", "text": "not necessarily limited to, the responsibility for support.... ****** “The second applicable statute reads: (d) A decree vesting legal custody of a child or providing for placement of a child pursuant to section 19-2-103, 19-3-101.1, or 19-3-109 with an agency in which public moneys are expended shall be accompanied by an order of the court which obligates the parent of the child to pay a fee, based on the parent’s ability to pay, to cover the costs of the guardian ad litem and of providing for residential care of the child. When custody of the child is given to the county department of social services, such fee for residential care shall be in accordance with the fee requirements as provided by rule of the department of social services, and such fee shall apply, to the extent unpaid, to the entire period of placement. (Emphasis added). “The Huber court stated: The Debtors argue that the debt must indeed be owed “to” the child not the county otherwise it is dischargeable. Alternatively, the Debtors assert that the debt was somehow “assigned” to the county in contravention of § 523(a)(5)(A) thus making it dischargeable. The Debtors are incorrect on both counts.... debt is predicated on two Colorado statutes. The first, C.R.S. § 19-1-103(24) concerns residual parental rights ... The second applicable statute reads: ... C.R.S. § 193-115(4)(d). Pursuant to these statutes, this Court finds that the disputed debt herein is in the nature of child support and as such, is nondis-chargeable. “This case is remarkably similar to In re Morris, 14 B.R. 217 (Bankr.D.Colo.1981) in which then Bankruptcy Judge Moore analyzed an analogous Colorado statute, C.R.S. § 14-10-116(1773) and § 523(a)(5), and determined that payments to a third party which benefited a child were nondischargeable in bankruptcy. Clearly, the Colorado General Assembly has legislated a parental duty to provide for the support of their minor children. A strict reading of § 523(a)(5) as ‘to whom’ payments are made defeats both the state statutes and the intent of the Code because ‘obligations arising out of the family relationship and the stability generated thereby outweighs" }, { "docid": "10761545", "title": "", "text": "523(a)(5) with respect to child support obligations. In addition to a legal guardian of a child, it added a child’s parent and responsible relative to the class of persons protected by section 523(a)(5). And it expanded the sphere of nondis-chargeable debt to include not only debts owed to, but also debts that could be recovered by the types of persons identified in section 101(14A). The Supreme Court “will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure.” Hamilton v. Lanning, 560 U.S. 505, 130 S.Ct. 2464, 2473, 177 L.Ed.2d 23 (2010) (internal quotations omitted). The use of the words “legal guardian,” undefined in federal law but susceptible to meaning any guardian of a child appointed according to law, does not demonstrate that Congress intended to abrogate the considerable body of case law holding that a guardian ad litem of a child is entitled to the protection of section 523(a)(5). This Court has found no legislative history or pre-BAPCPA cases dealing with legal guardians under section 523(a)(5) that would shed light on the purpose of adding legal guardians to the list of persons entitled to enforce support obligations. Only two reported cases prior to the BAPCPA’s enactment involved a “legal guardian” and the issue of dischargeability under section 523(a)(5). Neither case held that a legal guardian was not a person covered by section 523(a)(5). Each case involved the claim of a guardian ad litem for a child or children against the debtor, who was the legal guardian of the child or children. In In re Sullivan, 234 B.R. 244 (Bankr.D.Conn.1999), the court held that a debt owed to a guardian ad litem was not in the nature of support under Connecticut law and that the phrase “child of the debt- or” did not include the legal guardian, who was the grandmother of the children. In In re Uriarte, 215 B.R. 669 (Bankr.D.N.J.1997), the court reached the same result under New Jersey law and further held that because the husband debtor, though guardian of his wife’s children, was not the parent" }, { "docid": "660127", "title": "", "text": "Spear v. Constantine (In re Constantine), 183 B.R. 335, 336 (Bankr.D.Mass.1995). The only issue in dispute is whether Joe constitutes a “child of the debtor[s].” The Defilippis contend that since they are Joe’s biological grandparents, he cannot be their “child” and, therefore, Epstein’s claim is subject to discharge. See, e.g., In re Look, 383 B.R. 210 (Bankr.D.Me.2008) (Congress intends the ordinary meaning of words used in a statute). They would have the court look exclusively at biological relationships. See, e.g., Eliason v. Sullivan (In re Sullivan), 234 B.R. 244 (Bankr.D.Conn.1999), and Ceconi v. Uriarte (In re Uriarte), 215 B.R. 669 (Bankr.D.N.J.1997) (both finding debts owed by grandparents for support of their grandchildren to be dischargeable, emphasizing the plain meaning of “child of the debtor”). Though a biological parent/child relationship may be sufficient to bring a support debt within § 523(a)(5)’s purview, it is not a necessary condition to its operation. Here, a state court judgment provided that the “parental rights and responsibilities of [Joe’s biological parents] are not terminated, but are allocated to the de facto parents ” (emphasis added), who were, at the time, the Defilippis, Ms. Le-Blanc, and her partner. The proceeding that resulted in that judgment was not brought under Maine’s Grandparents Visitation Act, 19-A M.R.S. §§ 1801-1805 (2005) (authorizing grandparents to petition for visitation rights under certain conditions), but was a petition brought under 19-A M.R.S. § 1653 seeking a declaration establishing that the Defilippis had parental rights and responsibilities for Joe. [W]hen an individual’s status as a de facto parent is not disputed and has been so determined by a court properly exercising jurisdiction in a declaratory judgment action pursuant to Title 19-A, the court may consider an award of parental rights and responsibilities to that individual as a parent pursuant to section 1653(2)(D), based upon a determination of the child’s best interest pursuant to section 1653(3). C.E.W. v. D.E.W., 845 A.2d 1146, 1151 (Me.2004) (emphasis added). A parental rights order, pursuant to 19-A M.R.S.A. § 1653(2), is the appropriate means of establishing parental rights and responsibilities. A parental rights order specifies the parties’ rights" }, { "docid": "660123", "title": "", "text": "Memorandum of Decision JAMES B. HAINES, Jr., Bankruptcy Judge. I. Introduction The plaintiff, Ellen Epstein, seeks a determination that $4,333 owed her by the debtors, John and Lori Defilippi, is excepted from discharge as a “domestic support obligation” under §§ 101(14A) and 523(a)(5) of the Bankruptcy Code. Because her claim is owed for services rendered as a guardian ad litem in state court, because such obligations are considered amounts owed for the support of a child, and because the Defilippis constitute “parents” of their grandson for purposes of this dischargeability determination, I conclude that the debt is excepted from the Defilippis’ chapter 7 discharge. II.Procedure A. Posture Epstein has moved for judgment as a matter of law. See Fed.R.Civ.P. 50(a). However, a motion for judgment as a matter of law is properly made after a party has been fully heard at trial. Id. Epstein’s motion is more properly treated as one for summary judgment. See Fed.R.Civ.P. 56. The defendants consent to such treatment. B. Summary Judgment Standard Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Id. I must scrutinize the legal merit of a summary judgment request to ensure that the relief requested is warranted on the undisputed facts. Chase Manhattan Bank USA, N.A. v. Poor (In re Poor), 219 B.R. 332, 334 (Bankr.D.Me.1998), citing, inter alia, Ramsdell v. Bowles, 64 F.3d 5, 8 (1st Cir.1995) (“summary judgment is appropriate only if the record before the court establishes that the moving party is entitled to judgment as a matter of law.”). III.Facts The Defilippis are paternal grandparents of a minor child, “Joe.” Together, before their bankruptcy, they initiated proceedings in Maine District Court against Joe’s maternal grandmother (“Ms. Le-Blanc”) and her then domestic partner, seeking modification of parental rights for Joe. The basis for their action and the status of Joe’s biological parents are beside the point. What is important is the result: The state court" }, { "docid": "20283329", "title": "", "text": "the Plaintiff with this Court, the Plaintiff scheduled as a debt the $20,000 in attorney’s fees awarded to the Defendant. (Bankruptcy No. 11-70968-JAD, Doc. # 1, Schedule F). The Plaintiff then filed the instant adversary complaint against the Defendant asserting that the $20,000 agreed upon by the parties as payment for attorney’s fees related to their custody dispute is dischargeable and does not constitute a domestic support obligation under 11 U.S.C. § 523(a)(5). 16. Both parties have since filed motions for summary judgment, and the issue of dischargeability is now properly before this Court. III. ANALYSIS At issue in the instant case is whether the award of $20,000 in attorney’s fees in the Defendant’s custody case, awarded by the State Court pursuant to § 5452 of Pennsylvania’s adoption of the UCCJEA, is non-dischargeable in bankruptcy under 11 U.S.C. § 523(a)(5). This provision of the Bankruptcy Code states, in pertinent part, that “a discharge ... of this title does not discharge an individual debtor from any debt ... for a domestic support obligation.Id. The burden falls on the Defendant as the party to whom the debt is owed, to prove that the Plaintiffs failure to pay the Defendant’s attorney’s fees, pursuant to the State Court order, falls within this exception to discharge. Sorah v. Sorah, 163 F.3d 397, 401 (6th Cir.1998). Section 101(14A) of the Bankruptcy Code, defines “domestic support obligation” as: [A]debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable non-bankruptcy law notwithstanding any other provision of this title, that is&emdash; (A) owed to or recoverable by&emdash; (i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or ... (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated; (C) established or subject to establishment before, on, or after" }, { "docid": "8415287", "title": "", "text": "in either ... state law or federal bankruptcy law to suggest that the term ‘child of the debtor’ encompasses any relationship other than a parent/child relationship.” Uriarte, 215 B.R. at 673. Joshua and Kasey are the grandchildren, not the children, of the debtor. Eliason has cited no instance where a debt incurred on behalf of a child by a nonparent has been held nondischargeable under § 523(a)(5). In fact, in Uñarte, Id., the bankruptcy court specifically held that this provision did not apply to the debt of a custodial grandparent for the fees of the grandchildren’s guardian ad litem for services rendered during the custody proceedings. The court concluded that a grandchild is not a “child of the debtor,” and the guardian ad litem debt, therefore, was held to be dis-chargeable. Id. In addition, to be nondischargeable under § 523(a)(5), the debt at issue must be incurred for the “support” of the child. It is unclear from the pleadings whether the debtor was granted legal guardianship, as well as custody, of the children. However, even if she were their legal guardian, the Connecticut Supreme Court has held that: A guardian of a minor child has no legal obligation of support for that child. This conclusion is compelled by our statutes regarding guardianship, by the common law background of those stat utes, and by the policy undergirding those statutes and that common law.... Thus, for purposes of the financial obligation to support a minor child, a guardian has no greater legal obligation to support his or her ward than a stranger has. The policy behind these longstanding precepts is to protect the interests of minor children who are in need of guardianship protection. If a person, by accepting the obligations of the guardian of a minor child were also held to have the legal responsibility to support the child, the law would discourage the acceptance of such appointment. Such a result would, in the long run, undermine rather than further the interests of minor children.... To conclude otherwise would discourage family members from voluntarily undertaking such [guardianship] obligations and from coming" }, { "docid": "16641479", "title": "", "text": "has been seeking through the state court to perform as a parent of the children and has been acting as a parent to them during the course of the guardianship dispute. This is a mis-charae-terization of the defendant’s actions and New Jersey state law. New Jersey state law defines a “parent” as “a natural parent or parent by previous adoption.” N.J. Stat. Ann. § 9:2-13. The defendant is not the natural parent of the children and is not seeking to adopt the children. The defendant is the guardian of the children. The responsibilities of a guardian differ from those of a parent in one crucial way. A guardian has the “power and responsibilities of a parent who has not been deprived of custody of his minor and unemaneipated child, except that a guardian is not legally obligated to provide for the ward from his own funds ” (emphasis added). N.J. Stat. Ann. § 3B: 12-51. It is unclear from the papers how the children’s financial needs are being met. There was a suggestion that there may be a trust fund or similar fund for the children. The source of the children’s support is, however, irrelevant. Even if Ricardo is supporting the children from his own funds, he is not legally obligated to do so. If he is not legally obligated to support the children, the obligation to pay their guardian ad litem is not an obligation for their support under section 523(a)(5). Moreover, an extensive review of the case law under section 523(a)(5) has not located any cases in which the debt declared nondischargeable pursuant to that section was owed by someone other than the parent of a child. As a result of the foregoing, it is clear that according to the plain language of section 523(a)(5), New Jersey state law, and case law interpreting section 523(a)(5), the Silva children are not “children of the debtor.” Defendant Ricardo Uriarte’s debt to the plaintiff therefore does not meet the first element of the section 523(a)(5) test for nondischarge-ability in that it is not a debt to a child of the debtor." }, { "docid": "8415286", "title": "", "text": "motion may be deemed sufficient cause to grant the motion, except where the pleadings provide sufficient grounds to deny the motion.” D.Conn.L.Civ.R. 9(a)(1), incorporated by D.Conn.L.Bankr.R. 1(b). The court must determine, therefore, whether the pleadings provide sufficient grounds to deny the motion. “The plain language of [§ 523(a)(5) ] 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’.” Ceconi v. Uriarte (In re Uriarte), 215 B.R. 669, 672 (Bankr.D.N.J.1997) (quoting § 523(a)(5)). There is no question that the probate court ordered the debtor to pay the fees at issue. The third requirement is, therefore, satisfied. However, two additional requirements remain before a debt may be considered nondischargeable under § 523(a)(5). “Although fees owed to a guardiah ad litem are considered debts to a child of the debtor, there is no evidence in either ... state law or federal bankruptcy law to suggest that the term ‘child of the debtor’ encompasses any relationship other than a parent/child relationship.” Uriarte, 215 B.R. at 673. Joshua and Kasey are the grandchildren, not the children, of the debtor. Eliason has cited no instance where a debt incurred on behalf of a child by a nonparent has been held nondischargeable under § 523(a)(5). In fact, in Uñarte, Id., the bankruptcy court specifically held that this provision did not apply to the debt of a custodial grandparent for the fees of the grandchildren’s guardian ad litem for services rendered during the custody proceedings. The court concluded that a grandchild is not a “child of the debtor,” and the guardian ad litem debt, therefore, was held to be dis-chargeable. Id. In addition, to be nondischargeable under § 523(a)(5), the debt at issue must be incurred for the “support” of the child. It is unclear from the pleadings whether the debtor was granted legal guardianship, as well as custody, of the children. However, even" }, { "docid": "16964479", "title": "", "text": "under Bankruptcy Code § 523(a)(5) Appellant’s court-ordered obligation to pay them. The bankruptcy court concluded that the court-ordered payment of attorneys’ fees incurred in post-divorce/child custody litigation should be recognized as child support, and therefore non-dischargeable under § 523(a)(5). In reaching this conclusion the bankruptcy court relied on In re Snider, 62 B.R. 382 (Bankr.S.D.Tex.1986) (visitation is sufficiently related to child support so as to render the award of attorney’s fees as non-dischargeable under § 523(a)(5)), and In re Laney, 53 B.R. 231 (Bankr.N.D.Tex.1985) (fees awarded in domestic litigation should be recognized as alimony, maintenance, or child support and therefore non-dischargeable). The district court subsequently affirmed the bankruptcy court’s decision. II. STANDARD OF REVIEW We review findings of fact under the clearly erroneous standard, but are free to review conclusions of law de novo. In re Consolidated Bancshares, 785 F.2d 1249, 1252 (5th Cir.1986) (citing Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1307-08 (5th Cir.1985)). III. ANALYSIS The issue we review is a narrow issue of law: whether Appellant’s court-ordered obligation to pay fees charged by Barbara Fritz and a portion of fees charged by Roland Carlson as guardian ad litem is considered child support, and therefore non-dischargeable under 11 U.S.C. § 523(a)(5). Having carefully considered the relevant case law, we conclude that the bankruptcy court and district court correctly determined that Appellant’s debt is nondischargeable. Section 523(a)(5) does not discharge a debtor from any debt for support of his or her child, if that debt is in connection with a court order. 11 U.S.C. § 523(a)(5). Barbara Fritz, representing Wesley Rich, and Roland Carlson, as Brandi Rich’s guardian ad litem, supplied services during the child custody hearing of Brandi Rich. That hearing was clearly for Brandi Rich’s benefit and support, as the purpose of the hearing was to determine who could provide the best home for her. See In re Laney, 53 B.R. at 233. The state court subsequently ordered Appellant to pay fees charged by Barbara Fritz and a portion of fees charged by Roland Carlson. Because the fees charged by Appellees were incurred during" }, { "docid": "16641469", "title": "", "text": "type excepted from discharge by section 523(a)(5). Defendants argue that the children are not. “children] of the debtor” as required by section 523(a)(5) because Ricardo is only their guardian. They acknowledge that courts have declared debts to third parties that benefit a child to be support, even though payment would not be directly to the child, but claim that these courts have failed to give proper weight to the policy of affording a debtor a fresh start. Defendants further claim that the debt does not meet the definition of support in section 523(a)(5). Defendants contend that 523(a)(5) applies only to debts incurred in the context of matrimonial or divorce proceedings and not to a guardianship dispute under a will. Plaintiffs Position Plaintiff argues that she is entitled to summary judgment because the fee for her services as guardian ad litem is a debt “to a child of the debtor,” incurred for “support” of the child and “in connection with ... an order of a court of record” as required by section 523(a)(5). Plaintiff argues that because the children are in the physical custody of defendant Ricardo Uriarte as their legal guardian they are the “child[ren] of the debt- or.” Plaintiff relies on N.J. Stat. Ann. § 9:3-38 which defines a child as “a person under 18 years of age” and custody as “the general right to exercise continuing control over the person” as support for her argument. Plaintiff contends that because Ricardo is seeking, through the state court, to perform as a parent to the children and has been acting as such during the course of the guardianship dispute, he has a financial duty to pay a support obligation that arose during the exercise of his parental duties. ’ Plaintiff further argues that although fees to a guardian ad litem are not paid directly to the child they are still debts owed to the “child[ren] of the debtor” because the guardian acts on behalf of the children to protect their welfare. Plaintiff cites a number of cases holding guardian ad litem fees to be debts owed to the child of" }, { "docid": "8415289", "title": "", "text": "forward to serve as guardians.... It is true, of course, that a guardian of a minor child acts in loco parentis. One of the essential purposes of establishing such a guardianship is that a responsible adult act in that fashion. That does not mean, however, that acting in loco par-entis, which is the essence of a guardianship, imposes on the guardian the legal obligations of support. Favrow v. Vargas, 231 Conn. 1, 18-21, 647 A.2d 731 (1994) (citations omitted). Inasmuch as state law imposes no financial obligation on the debtor for the support of the children, the court concludes that the fees to the guardian ad litem, although imposed on the debtor by order of the probate court, are not in the nature of “support.” V. Because the fees owed by the debtor to Eliason were not incurred on behalf of a “child of the debtor,” and were not in the nature of “support,” the court concludes that they are not excepted from discharge under § 523(a)(5). For the reasons stated above, Eliason’s motion for summary judgment is denied. It is SO ORDERED. . Section 523, Exceptions to Discharge, provides, in relevant part: (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 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" }, { "docid": "20283332", "title": "", "text": "and other family law proceedings are non-dischargeable domestic support obligations under 11 U.S.C. § 523(a)(5). See, e.g., In re Johnson, 445 B.R. 50 (Bankr.D.Mass.2011) (holding that attorney’s fees incurred by a debtor’s ex-wife to protect her child support award were non-dischargeable as a domestic support obligation); In re Blackwell, 432 B.R. 856 (Bankr.M.D.Fla.2010) (holding that the debt was non-dischargeable as a domestic support obligation even though it was a debt to pay a spouses attorney’s fees and the recipient of the fee was not a spouse or child); In re Papi, 427 B.R. 457 (Bankr. N.D.Ill.2010) (holding that a Chapter 7 debtor could not discharge attorney’s fees awarded by the court in a marital dissolution action, which the court determined were incurred for the mother and her child’s mutual benefit and support under 11 U.S.C. § 523(a)(5)); cf. In re Andrews, 434 B.R. 541 (Bankr.W.D.Ark.2010) (holding that an award of attorney’s fees was a “domestic support obligation” for purposes of 11 U.S.C. § 507 even though it was payable directly to the attorney of a divorced spouse). Similar in fact to the instant case is In re Gruber, 436 B.R. 39 (Bankr.N.D.Ohio 2010), in which a defendant owed to his plaintiff ex-wife attorney fees awarded by a state court in post-divorce custody proceedings. The defendant in Gruber, post-divorce, filed a motion to modify the parent’s child-sharing plan and child-support plan. 436 B.R. at 40-41. The domestic relations court ultimately held in favor of the plaintiff, terminated the child sharing plan, and granted the plaintiff sole custody. Id. at 41. The court then awarded attorney’s fees to the plaintiff in light of unrefuted threats of the defendant to outspend the plaintiff in the matter, in an effort to cause the plaintiff to dismiss her action. Id. When the defendant filed for bankruptcy, the plaintiff in Gruber challenged the dischargeability of the attorney’s fees pursuant to 11 U.S.C. § 523(a)(5). Id. The United States Bankruptcy Court for the Northern District of Ohio considered the issue of dischargeability in light of the definition of “domestic support obligation” under 11 U.S.C. § 101(14A). Id." }, { "docid": "20301215", "title": "", "text": "v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992). However, section 523(a)(5) excepts debts related to domestic support obligations, and provides an exception to the rule favoring debtors: Bankruptcy law has ... a longstanding ... policy of protecting a debtor’s spouse and children when the debtor’s support is required.... This policy is manifest in the Bankruptcy Code’s § 523(a)(5); this section declares nondis-chargeable a marital obligation that was incurred by the debtor for alimony, maintenance or support of the debtor’s spouse, former spouse or child. This exception therefore expresses Congress’ determination to protect former spouses in matters of alimony, maintenance, and support despite the Bankruptcy Code’s general policy of providing a debtor with a fresh start. Because of this Congressional determination, a § 523(a)(5) exception from discharge is construed more liberally than other § 523 exceptions. In re Crosswhite, 148 F.3d 879, 881-82 (7th Cir.1998) (citations omitted). Section 523(a)(5) provides that a debt “for a domestic support obligation” is not dis-chargeable. The term domestic support obligation is separately defined as a debt that is: (A) owed to or recoverable by-— (i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or (ii) a governmental unit; (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated; (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of— (i) a separation agreement, divorce decree, or property settlement agreement; (ii) an order of a court of record; or (iii) a determination made in accordance with applicable nonbankrupt-cy law by a governmental unit; and (D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or responsible relative for the purpose of collecting the debt. 11 U.S.C. §" }, { "docid": "10761546", "title": "", "text": "section 523(a)(5) that would shed light on the purpose of adding legal guardians to the list of persons entitled to enforce support obligations. Only two reported cases prior to the BAPCPA’s enactment involved a “legal guardian” and the issue of dischargeability under section 523(a)(5). Neither case held that a legal guardian was not a person covered by section 523(a)(5). Each case involved the claim of a guardian ad litem for a child or children against the debtor, who was the legal guardian of the child or children. In In re Sullivan, 234 B.R. 244 (Bankr.D.Conn.1999), the court held that a debt owed to a guardian ad litem was not in the nature of support under Connecticut law and that the phrase “child of the debt- or” did not include the legal guardian, who was the grandmother of the children. In In re Uriarte, 215 B.R. 669 (Bankr.D.N.J.1997), the court reached the same result under New Jersey law and further held that because the husband debtor, though guardian of his wife’s children, was not the parent of the children, the debt was not owed to a child of the debtor. No reported decision has held that a legal guardian to whom a debt for support was owed is dischargeable. Similarly, the Court has not found, and Defendant has not cited, any case decided prior to the enactment of the BAPCPA in which a debt for support owed to a child’s parent or responsible relative was discharged. Hence, the 2005 amendments do not appear to have been enacted to overturn prior decisions that were adverse to guardians, relatives or parents or to narrow the class of persons permitted to enforce support obligations. Under the circumstances described above, the meaning of the words “legal guardian” in the Bankruptcy Code must be grounded in the purpose of the statute. The purpose of sections 101(14A) and 523(a)(5) with respect to a child of a debtor is to protect that child by making a debt for support of the child nondischargeable. In the Rackleys’ case before the Cobb County Superior Court, the guardian ad litem was" }, { "docid": "13605505", "title": "", "text": "and maintenance; and, since the County acted for the child, the monies would be owed by the child, who though is not the payee, is the obligee. “This case is remarkably similar to a recent Colorado decision, in which the bankruptcy court held that Colorado’s support statute constituted support within the purview of § 523(a)(5). In re Huber, 80 B.R. 531 (Bankr.D.Colo.1987). In Huber, the court held the debt owed by the debtor to the county pursuant to an adjudication of dependency and neglect regarding a minor child of the debtors for foster care support fees, arising from placement of debtor’s minor child in custody of the court was nondischargeable support obligation pursuant to 11 U.S.C. § 523(a)(5). Id. The Huber court based its decision on two Colorado statutes. The First, C.R.S. § 19-1-103(24) concerns residual parental rights. It provides: (24) ‘Residual parental rights and responsibilities’ means those rights and responsibilities remaining with the parent after legal custody, guardianship of the person, or both have been vested in another person, agency, or institution, including, but not necessarily limited to, the responsibility for support.... ****** “The second applicable statute reads: (d) A decree vesting legal custody of a child or providing for placement of a child pursuant to section 19-2-103, 19-3-101.1, or 19-3-109 with an agency in which public moneys are expended shall be accompanied by an order of the court which obligates the parent of the child to pay a fee, based on the parent’s ability to pay, to cover the costs of the guardian ad litem and of providing for residential care of the child. When custody of the child is given to the county department of social services, such fee for residential care shall be in accordance with the fee requirements as provided by rule of the department of social services, and such fee shall apply, to the extent unpaid, to the entire period of placement. (Emphasis added). “The Huber court stated: The Debtors argue that the debt must indeed be owed “to” the child not the county otherwise it is dischargeable. Alternatively, the Debtors assert that the" } ]

[ { "docid": "22610884", "title": "", "text": "proof of malice. The court’s instructions defined malice as “an intent to do any injury to another, a design formed in the mind of doing mischief to another.” App. 186. Malice did not require proof of planning or premeditation; a killing “upon a sudden impulse of passion” sufficed if committed with intent to harm another. Id., at 187. The court then charged the jury: “All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable . . . doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.” Ibid. The jury found respondent guilty of first-degree murder for killing Faulk and of second-degree murder for killing Browning. The Tennessee Court of Criminal Appeals affirmed the convictions, rejecting respondent’s argument that the jury instructions had impermissibly shifted the burden of proof as to malice. Respondent then sought habeas corpus relief in the Middle District of Tennessee. The District Court held that the malice instruction had violated respondent’s right to have his guilt proved beyond a reasonable doubt, as that right was defined in Sandstrom v. Montana. The court went on to find that the error could not be deemed harmless because respondent had “relied upon a mens rea defense” in contesting his guilt. 611 F. Supp. 294, 302 (1983). The Court of Appeals for the Sixth Circuit affirmed. The court agreed that the malice instruction was unconstitutional under Sandstrom. Turning to the question whether the error was harmless, the court reasoned that because respondent contested malice at his trial, an erroneous burden-shifting instruction could not be harmless under governing precedent. App. to Pet. for Cert. A-5 (citing Engle v. Koehler, 707 F. 2d 241, 246 (CA6 1983), aff’d by an equally divided Court, 466 U. S. 1 (1984)). The court reached this conclusion “despite the substantial" } ]

[ { "docid": "7306038", "title": "", "text": "States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the court did not uphold convictions based on overwhelming evidence of “use,” notwithstanding the faulty instructions. See, e.g., Holland, 116 F.3d at 1357 (declining to base decision on government’s argument). Rather, convictions were affirmed based on other instructions given and the resultant jury consideration of evidence bearing on “carrying,” and necessary jury findings of “carrying,” an explicit alternative element under the statute. See, e.g., id. at 1359. Convictions were not upheld based on hypothetical jury verdicts, but actual jury verdicts, effective in fact if not in form. See United States v. McDonald, 150 F.3d 1301, 1304-05 (10th Cir.1998); United States v. Durham, 139 F.3d 1325, 1335-36 (10th Cir.), cert. denied, — U.S. -, 119 S.Ct. 158, 142 L.Ed.2d 130 (1998). The government makes no argument that the instruction at issue, or any other instruction given, indicates the jury considered any evidence of service, much less necessarily found service beyond a reasonable doubt. I can find none, nor can I find any evidence that the jury considered whether Ms. Wittgenstein had knowledge of a final order of deportation under the court's incorrect formulation. Rather, the erroneous district court instruction, like a narrow conclusive presumption, indicates that a jury would not have considered other evidence bearing on an arrest, or notice of a final order of deportation under the court’s incorrect formulation. See Yates, 500 U.S. at 403-04, 111 S.Ct. 1884; Johnson, 460 U.S. at 85-86, 103 S.Ct. 969; Carella v. California, 491 U.S. 263, 269, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring). The challenged instruction told the jury that the mere issuance of a warrant constitutes arrest, and issuance was undisputed. Thus, presuming jurors follow their instructions, it would have been a waste of the jurors’ time to consider any other evidence of notice, service, or arrest generally. See Sandstrom v. Montana, 442 U.S. 510, 526 n. 13, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Likewise then, neither the challenged instruction, nor any other instruction, indicates a necessary jury finding either embracing service or making it impossible" }, { "docid": "5669540", "title": "", "text": "reversible error. II. Jury instructions in a criminal case must be evaluated not in isolation, but in the context of the overall charge. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The Supreme Court has also held that the charge shall not instruct the jury conclusively or rebuttably to presume the presence of an element of a crime; to do so relieves the state’s burden to prove guilt beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The test is whether any “reasonable juror could have given the presumption conclusive or persuasion-shifting effect....” Id. at 519, 99 S.Ct. at 2452. In Sandstrom, the court invalidated an instruction which stated that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” Since this language is very similar to that used in the present case, we must evaluate the trial court’s instruction in light of Sandstrom. The respondent counters that since Engle did not object to the challenged instructions at trial, he must demonstrate cause and actual prejudice rather than merely showing that a rational juror might have impermissibly relied upon a presumption. See Fornash v. Marshall, 686 F.2d 1179 (6th Cir.1982). Fornash is distinguishable, however, because the Michigan courts do not enforce a contemporaneous objection rule against failures to object to Sandstrom instructions. People v. Wright, 408 Mich. 1, 30 n. 13, 289 N.W.2d 1 (1980). Consequently, the cause and prejudice analysis of Fornash is inapplicable to this case. III. The district court held that no rational juror could have believed that the instructions in this case mandated a finding that the petitioner intentionally and maliciously killed Lantzy. The court noted that immediately after the trial judge instructed the jury that the law provides “a rule of thumb that a person is presumed to intend the natural consequences of his acts,” he listed several items for the jury to consider in deciding whether or not the requisite malice and intent had been proven by the state. Requiring the jury to weigh these factors was" }, { "docid": "5739864", "title": "", "text": "N.E.2d 637. In effect, the trial court’s affirmative answer to the jury question improperly relieved the state of its duty to prove appellant’s purpose to kill beyond a reasonable doubt. See In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068 [1072] 25 L.Ed.2d 368. Id. Thus, under Ohio law, a defendant’s purpose to kill must be proved as an essential element of the crime of aggravated murder even where the prosecution proceeds on an aider and abetter theory. Certainly, purpose to kill may reasonably be inferred from proven facts, and a “non-triggerman” can be convicted under this statute. C The Due Process Clause of the Fourteenth Amendment requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [defendant] is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); Sandstrom v. Montana, 442 U.S. 510, 520, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 (1978). Thus, the question presented here, as in Sandstrom, is “whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind.” 442 U.S. at 521, 99 S.Ct. at 2458. Under Sandstrom, supra, the test employed in reviewing jury instructions involving presumptions was described as follows: [The] determination requires careful attention to the words actually spoken to the jury . . . for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction. Id. at 514, 99 S.Ct. at 2454 (Emphasis added.) In contrast to Sandstrom, this case does not directly involve the use of a presumption as such. That is, the jury was never instructed that it must or might infer that the defendant had a purpose to kill based upon other facts in evidence. Instead, the jury in this case was instructed that the essential element of purpose to kill could be found in the mind of the defendant “and/or” his accomplice. Nevertheless, the principles articulated in Standstrom are equally applicable" }, { "docid": "4005692", "title": "", "text": "reasonable doubt. Indeed, the instruction given two paragraphs later emphasized the applicability of the reasonable doubt standard in the special context of circumstantial evidence by requiring that facts proven by such evidence “not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” As to the second part of the instruction, stating that intent “may be presumed when it would be the natural and necessary consequence of the particular acts,” such charge was also permissive. Unlike the ambiguous directive — “the law presumes that ... ”• — contained in the Sandstrom and Mason instructions, the “may be presumed” language used here was unlikely to be interpreted by reasonable jurors as requiring them to draw an inference of intent. Compare Sandstrom v. Montana, 442 U.S. at 514-15, 99 S.Ct. at 2454; Mason v. Balkcom, 669 F.2d at 225. The permissive language would also tend to prevent reasonable jurors from viewing the presumption, once made, as conclusive or irrebuttable. Having been told that they might infer intent from certain types of evidence, reasonable jurors would not likely conclude they were entitled to do so in the face of convincing contradictory evidence. Finally, even if the instruction could have been understood as allowing the jury to make an irrebuttable inference of intent, the term “necessary” limited the acts from which the jury could draw such inference to those that in its view could not have been performed unintentionally. We conclude that this instruction was not reasonably susceptible of an interpretation that relieved the prosecution of its burden of proving intent beyond a reasonable doubt or otherwise undermined the factfinding responsibility of the jury. b. Malice instructions The second instruction with which appellant takes issue provides that “[m]alice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” The “shall be implied” language in this charge is suggestive of a mandatory presumption, which might be interpreted either as conclusive or rebut-table. Further analysis reveals, however, that the evidentiary device" }, { "docid": "2627794", "title": "", "text": "a defendant is guilty of a charge, it must acquit. Unless the government proved beyond a reasonable doubt that the defendant has committed every element of the offense with which he is charged, you must find him not guilty. You, of course, may not find any defendant guilty until you find beyond a reasonable doubt that every element of the offense, as defined in these instructions, was committed by some person or persons, and that the defendant participated in its commission. Mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was participating and not merely a knowing spectator. Because the government bears the burden of proving every element beyond a reasonable doubt, an instruction which shifts the burden of persuasion to the defendant is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979). Ru-bio-Villareal argues that it was error for the lower court to instruct the jury that it could infer the existence of specific knowledge on the part of the defendant based solely upon the act of driving the automobile across the border because this instruction impermissibly shifted the burden of proof. In support of this proposition, he relies on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and United States v. Martinez, 514 F.2d 334 (9th Cir.1975). In Sandstrom, the Supreme Court reversed a defendant’s conviction based upon an analysis of a jury instruction which stated that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Sandstrom, 442 U.S. at 513, 99 S.Ct. at 2453. The Court held that the presumption contained in the instruction could have been interpreted by a reasonable jury as conclusive or persuasion-shifting. In Martinez, this court held that under the facts of that case, an instruction which stated “that when one drives a car laden with contraband, there is a substantial basis from which the trier" }, { "docid": "2283493", "title": "", "text": "1-2 not at issue, we conclude that the district court did not abuse its discretion in offering these instructions. The conclusory-seeming nature of ¶ 3 suggests that the possibility of Sandstrom error may merit some discussion. Sandstrom error occurs where the particular phrasing of a jury instruction creates either a conclusive or a mandatory presumption in the minds of jurors. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Such errors violate the Fifth Amendment’s requirement that the government prove every element of a criminal offense beyond a reasonable doubt. Id. at 524, 99 S.Ct. 2450. It is important to note that Dickerson does not make a Sandstrom claim. Moreover, even if he had raised such a claim, we think that any Sandstrom error contained in ¶ 3 would be harmless. Despite the fact that Dickerson waived this argument, and notwithstanding the harmlessness of any possible Sandstrom error, we believe that some discussion of this topic would be helpful, to provide guidance to lower courts in crafting instructions in similar cases. A conclusive presumption exists where a trial court delivers a jury instruction that a reasonable jury could interpret as an irrebuttable directive to find a given element of a charged offense once convinced of a predicate fact or facts triggering the presumption. Sandstrom, 442 U.S. at 517, 99 S.Ct. 2450. Such a directive forecloses independent jury consideration of whether the facts proved are sufficient to establish the relevant element of the charged offense. Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curiam). Where “the jury might have understood the presumption to be conclusive, ... the instruction was constitutional error.” Id. We need not resolve the question of whether ¶ 3 contains a conclusive presumption, because, even if this instruction were deemed unconstitutional, the use of this potentially erroneous instruction would constitute harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In assessing a claim of constitutional error, we are mindful that “an otherwise valid conviction should not be set aside" }, { "docid": "191335", "title": "", "text": "any error in the instructions was harmless. The ease is REMANDED to the district court with instructions that the writ be denied. . We note that the Supreme Court has recently granted certiorari in a case in which it may consider whether a Sandstrom error was harmless. Rose v. Clark, 762 F.2d 1006 (6th Cir.), cert. granted, — U.S. -, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985). JOHNSON, Circuit Judge, dissenting: In Franklin v. Francis, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the United States Supreme Court held that a jury instruction virtually identical to one given in this case was unconstitutional because a reasonable juror could have understood it to shift to the defendant the burden of proof on the issue of intent. The majority does not reach the issue of whether additional language rendered this instruction constitutionally permissible in the instant case, because the majority holds that, even if the instruction was unconstitutional, any error in the instruction was harmless. In coming to this conclusion, the majority misreads the record of petitioner’s trial in state court. I dissent. I. Constitutionality of the Challenged Instruction It is clear that the challenged instruction in the instant case violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and its progeny, and therefore was unconstitutional. As in Franklin, the jury was instructed: “A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.” A reasonable juror could have understood this instruction to create “a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.” Franklin, supra, 105 S.Ct. at 1972. The instruction in the instant case was followed by a further instruction, which stated: A specific intent to commit the crime charged in this indictment is an essential element that the State must prove beyond a reasonable doubt. Intent is always a question for the jury, and is ordinarily ascertained by acts and conduct. Intent may" }, { "docid": "3324320", "title": "", "text": "single witness whatever weight you think it deserves. However, testimony by one witness which you believe concerning any fact is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of such fact depends. The second instruction informed jurors that [i]t is not essential to a conviction of the charge that the testimony of the witness with whom sexual contact is alleged to have occurred be corroborated by other evidence. Bruce argues that, because his trial effectively boiled down to a credibility contest between Catina and him, these instructions unconstitutionally lightened the State’s burden of proof by conveying to the jurors that Catina’s testimony was to be favored in determining guilt. The California Court of Appeal on direct appeal did not explicitly apply federal law in upholding the combination of the two instructions. See Early, 537 U.S. at 8, 123 S.Ct. 362 (noting that state court need not cite or even be aware of Supreme Court cases). Reasoning that the instructions did not modify one another, the Court of Appeal concluded that they did not unduly single out Catina’s testimony. In support of his claim of a due process violation, Bruce cites only In re Winship’s admonition that the Due Process Clause requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which[the defendant] is charged.” 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also Middleton v. McNeil, - U.S. -,-, 124 S.Ct. 1830, 1832, 158 L.Ed.2d 701 (2004) (per curiam) (“In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement.”); Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (“Jury instructions relieving States of [the burden of proving every element of an offense beyond a reasonable doubt] violate a defendant’s due process rights.”); Sandstrom v. Montana, 442 U.S. 510, 519, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (stating that Winship “provides the appropriate mode of constitutional analysis” for" }, { "docid": "1501879", "title": "", "text": "105 S.Ct. 137, 83 L.Ed.2d 77 (1984). Here, the state trial court initially instructed the jury on the presumption of sanity. Immediately following this instruction, however, the court carefully instructed the jury that the state had the ultimate burden of proving that Knaubert was sane beyond a reasonable doubt. A reasonable juror, hearing the instructions as a whole, would not have interpreted them as creating an irrebutta-ble rule of law requiring the jury to find Knaubert sane. See Francis v. Franklin, — U.S. —, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 515, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). Although the initial instruction may have had the potential to confuse the jury, the court’s final instruction that the state has the burden of proving beyond a reasonable doubt Knaubert’s sanity was sufficient to clear up any initial confusion. Moreover, the trial court did not unconstitutionally shift the burden of proof of sanity to Knaubert because the presumption of sanity placed on Knaubert only the burden of producing evidence raising a reasonable doubt as to sanity. See State v. Knaubert, 27 Ariz.App. at 60, 550 P.2d at 1102. Such a presumption does not undermine the fact-finder’s responsibility at trial, based on the evidence, to find the ultimate facts beyond a reasonable doubt. See County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979). Our decision in United States v. Arroyare, 465 F.2d 962 (9th Cir.1972) is not to the contrary. In Arroyare, the district court instructed the jury that “until a reasonable doubt as to the sanity of a defendant appears, the law presumes that all defendants are sane. But whenever, from the evidence in the case, you have a reasonable doubt of the sanity of a defendant, that defendant should be found to be insane.” Id. at 963. We reversed on the basis that the presumption of sanity was inapplicable. Here, however, the trial court’s instruction sufficiently establishes that the state bears the burden to prove beyond a reasonable doubt that the defendant" }, { "docid": "1501878", "title": "", "text": "never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. Under the defendant’s plea of not guilty by reason of insanity, there is an issue as to his sanity at the time of the alleged offense. The law does not hold a person criminally accountable for his conduct while insane, since an insane person is not capable of forming the intent essential to the commission of a crime. You may determine from the evidence whether the defendant was sane at the time the crime was committed. The State must prove beyond a reasonable doubt that the defendant was sane. Knaubert argues that the trial court’s jury instruction made the presumption of sanity appear irrebuttable and thus unconstitutionally shifted to Knaubert the burden of proof of his sanity. This contention is without merit. We review allegedly erroneous jury instructions in the context of the whole charge and the whole trial. See Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, — U.S. -, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). Here, the state trial court initially instructed the jury on the presumption of sanity. Immediately following this instruction, however, the court carefully instructed the jury that the state had the ultimate burden of proving that Knaubert was sane beyond a reasonable doubt. A reasonable juror, hearing the instructions as a whole, would not have interpreted them as creating an irrebutta-ble rule of law requiring the jury to find Knaubert sane. See Francis v. Franklin, — U.S. —, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 515, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). Although the initial instruction may have had the potential to confuse the jury, the court’s final instruction that the state has the burden of proving beyond a reasonable doubt Knaubert’s sanity was sufficient to clear up any initial confusion. Moreover, the trial court did not unconstitutionally shift the burden of proof of sanity to Knaubert because the presumption of sanity placed on Knaubert only the burden of producing" }, { "docid": "11873729", "title": "", "text": "element of the crime of murder. The Supreme Court recently announced the following standard in testing the propriety of a jury charge: “whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). Our analysis of the charge requires us first to determine whether the presumption is permissive or mandatory. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). A permissive presumption allows but does not require the jury to infer the presumed fact upon proof by the prosecution of the “evidentiary” or predicate fact. Id. at 157, 99 S.Ct. at 2224. The use of a permissive presumption is constitutional if there is a rational connection between the predicate and presumed facts. Id. at 157, 99 S.Ct. at 2224. See also Barnes v. United States, 412 U.S. 837, 841, 93 S.Ct. 2357, 2360, 37 L.Ed.2d 380 (1973); Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519 (1943). A mandatory presumption is of either the conclusive or burden-shifting variety. An instruction from the judge that proof of one fact is irrebuttable proof of a presumed fact is conclusive. A presumption that shifts the burden of proof to the defendant can be recognized by language that instructs the jury that proof of the predicate implies proof of the presumed fact unless disproved by the defendant himself by a preponderance of the evidence. Sandstrom v. Montana, supra, 442 U.S. at 516, 99 S.Ct. at 2455. A mandatory presumption which shifts the burden of persuasion by requiring the defendant to establish affirmatively the negative of an element of the offense is unconstitutional. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). However, a permissive presumption which allows but does not require the jury to find that the prosecution has met its burden as to the inferred fact on proof of the predicate fact at the most shifts the burden" }, { "docid": "4005691", "title": "", "text": "be determined by it from the evidence produced at trial. See note 8 supra. Although these prior instructions were not entirely inconsistent with a conclusive or burden-shifting presumption, cf. Sandstrom v. Montana, 442 U.S. at 518 n.7, 99 S.Ct. at 2456 n.7, they reduced the likelihood that the jury might misinterpret the following instruction as such. In any event, the instruction in this case was not identical to that invalidated in Sandstrom, and we conclude that the differences were constitutionally significant. Initially, we note that the first part of the instruction, which was not present in Sandstrom, is perfectly sound, constitutionally and otherwise. The import of the statement that intent “may be inferred . . . from proven circumstances or by the acts and conduct of the defendant” is simply that the jury may rely on circumstantial evidence in finding intent. In no way does the instruction suggest that the burden is on the defendant rather than the prosecution or that the circumstantial evidence need not convince the jury of the defendant’s intent beyond a reasonable doubt. Indeed, the instruction given two paragraphs later emphasized the applicability of the reasonable doubt standard in the special context of circumstantial evidence by requiring that facts proven by such evidence “not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” As to the second part of the instruction, stating that intent “may be presumed when it would be the natural and necessary consequence of the particular acts,” such charge was also permissive. Unlike the ambiguous directive — “the law presumes that ... ”• — contained in the Sandstrom and Mason instructions, the “may be presumed” language used here was unlikely to be interpreted by reasonable jurors as requiring them to draw an inference of intent. Compare Sandstrom v. Montana, 442 U.S. at 514-15, 99 S.Ct. at 2454; Mason v. Balkcom, 669 F.2d at 225. The permissive language would also tend to prevent reasonable jurors from viewing the presumption, once made, as conclusive or irrebuttable. Having been told that they" }, { "docid": "3214", "title": "", "text": "is forbidden by law and that he intended to do it. You may determine that the defendant intended to do the act if he did it voluntarily. The State does not have to prove that the defendant knew the act was forbidden by law. Evans claims that this instruction shifted to him the burden of disproving intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). A Sandstrom error arises when “a jury instruction ... creates a mandatory presumption, either conclusive or rebuttable, which shifts from the prosecution the burden of proving beyond a reasonable doubt an essential element of a criminal offense.” United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987). In contrast, an instruction that merely establishes a “permissive inference as to an essential element” is valid “unless ‘the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.’ ” Id. (quoting Francis v. Franklin, 471 U.S. 307, 314-15, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985)). In determining the nature of an inference, the test is simply how “a reasonable juror could have interpreted the instruction.” Sandstrom, 442 U.S. at 514, 99 S.Ct. at 2454. This necessitates careful examination of “the words actually spoken to the jury.” Id. In the present case, the instruction “[y]ou may determine that the defendant intended to do the act if he did it voluntarily” states a permissive inference. The instruction informs the jury that it may decide whether the requisite intent exists if it first finds that the defendant’s acts were voluntary. The instruction thus allows the jury to infer intent and does not require a presumption of intent. Furthermore, the conclusion reached by this permissive inference is supported by common sense. II. Sentencing Objections A. Ineffective Assistance of Counsel Evans argues that his attorney’s failure to present evidence of mitigation at his first sentencing hearing constituted ineffective assistance of counsel, depriving him of his sixth amendment right to counsel. Specifically, Evans maintains that his attorney should have introduced evidence indicating that he" }, { "docid": "1786024", "title": "", "text": "to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. As I have said, it is entirely up to you to decide what facts to find from the evidence. An instruction of this sort was approved by this court in United States v. Jenkins, 567 F.2d 896, 897 (9th Cir. 1978). However, appellants contend that the Supreme Court’s opinion in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), decided several months after the jury reached its verdict in this case, requires us to hold that this instruction unconstitutionally shifts the burden of proof with regard to the element of intent. Sandstrom is distinguishable. The jury instruction in Sandstrom stated that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” 442 U.S. at 513, 99 S.Ct. at 2453 (emphasis added). The Court reasoned that the jury could have interpreted the “presumption” referred to as conclusive, and determined that such an interpretation would have violated the due process requirement that the Government prove every element of a criminal offense beyond a reasonable doubt. 442 U.S. at 517-19, 99 S.Ct. at 2456-57. In so holding, the Supreme Court expressly distinguished the challenged instruction from an instruction of the kind given in this case, which does not tell the jury to presume intent from a voluntary act but merely permits the jury to infer intent. 442 U.S. at 514, 99 S.Ct. at 2454. Accordingly, Sandstrom does not bar the instruction given here. XII SELF-INCRIMINATION During jury deliberations, the court assembled the jurors for the purpose of sending them home for the evening. It was belatedly discovered that Dondich was not present. The following colloquy ensued: Lyons [Assistant United States Attorney]: No, we do not have Mr. Dondich present. Mr. White [co-counsel for Dondich] was checking to see where he is and I don’t know what the answer is on that. Arian [counsel for Mayo]: I think that— White: Your Honor, I put in a telephone— The Court: Yes, sir? White: Excuse me," }, { "docid": "11142605", "title": "", "text": "or as shifting the burden of persuasion. Appellants rely upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), as controlling and argue that the Court’s rationale in Sandstrom is applicable to this case and mandates reversal. In Sandstrom the Supreme Court invalidated a charge that stated: “[t]he law presumes that a person intends the ordinary consequences of his acts.” Sandstrom, 442 U.S. at 513, 99 S.Ct. at 2453. This court has previously dealt with an instruction similar to the one given in this case and found its permissive language to be acceptable under Sandstrom. In Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983), we stated: [T]he “may be presumed” language used here was unlikely to be interpreted by reasonable jurors as requiring them to draw an inference of intent____ The permissive language would also tend to prevent reasonable jurors from viewing the presumption, once made, as conclusive or irrebuttable. Having been told that they might infer intent from certain types of evidence, reasonable jurors would not likely conclude they were entitled to do so in the face of convincing contradictory evidence, (citations and footnote omitted) (emphasis in original). Id. at 1340. Accordingly, we conclude that this instruction was not reasonably susceptible to an interpretation that would relieve the prosecution of its burden of proving intent beyond a reasonable doubt, or would otherwise undermine the fact-finding responsibilities of the jury. Appellants argue that the underlining of words like “not,” “or,” “nor,” “all,” or “were” in the jury instructions had the potential of causing jurors to think that the government had to show little to get a conviction. Cotton cites United States v. Simms, 508 F.Supp. 1188 (W.D.La.1980), in support of this argument. We find the reasoning of Simms to be inapplicable to the facts of this case and find that the objections to the underlining is meritless as no prejudice can be shown. FAILURE TO SUPPRESS THE BEEPER SEARCH Appellants argue that the trial court erroneously denied its motion to suppress items seized from" }, { "docid": "548853", "title": "", "text": "terms],” Lannon, 719 F.2d at 521, “ ‘[i]t is clear that a reasonable juror could easily have viewed such an instruction as mandatory,’ ” id. (quoting Sandstrom, 442 U.S. at 515, 99 S.Ct. at 2454). B. Examination of the specific language challenged is but a starting point. We now must consider whether other parts of the judge’s charge adequately elaborated on the “malice is implied” statement so as to offset any erroneous impression given by that language. Franklin, 471 U.S. at 315, 105 S.Ct. at 1971; McInerney, 621 F.2d at 23-24. General instructions regarding the presumption of innocence and the state’s burden of proving all elements of a crime beyond a reasonable doubt are insufficient to cleanse the potentially unconstitutional version of the malice instruction because “[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to [malice] could be satisfied,” Sandstrom, 442 U.S. at 518-519 n. 7, 99 S.Ct. at 2456-57 n. 7. Even an instruction directly contrary to the erroneous one, which by itself correctly stated the law, “will not suffice to absolve the infirmity,” Franklin, 471 U.S. at 322, 105 S.Ct. at 1975, because “[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict,” id. Thus, our task is to determine whether other language in the charge explains the infirm language sufficiently so that there is no reasonable likelihood that the jury believed it must find malice if it found petitioner did the stabbing, id. at 323 n. 8, 105 S.Ct. at 1976 n. 8. See also Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990) (standard for reviewing jury instructions claimed to restrict impermissibly a jury’s consideration of relevant evidence is “whether there is a reasonable likelihood that the jury has applied the challenged instruction” unconstitutionally). We conclude that the charge in this case, taken as a whole, fails the test. The thrust of the supplemental charge that ends with the offending “malice is" }, { "docid": "1295500", "title": "", "text": "determining whether an instruction impermissibly shifts the burden of proof to a defendant, the threshold inquiry is whether the challenged portion of the charge creates a mandatory presumption or merely a permissive inference. See Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985); Santiago Sanchez Defuentes v. Dugger, 923 F.2d 801, 804 (11th Cir.1991). We must review the challenged jury instruction by reviewing the entire jury charge. Santiago Sanchez Defuentes, 923 F.2d at 804. A permissive inference or presumption allows, but does not require, the jury to “infer the elemental fact from proof by the prosecutor of the basic one and [] places no burden of any kind on the defendant.” Id. quoting Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979). A permissive inference is not burden shifting and, therefore, does not violate the due process clause. Id. We find that the court’s jury instructions as to intent created a permissive inference and did not shift the burden of proof onto Myers in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (invalidating a charge that stated: “[t]he law presumes that a person intends the ordinary consequences of his acts.”). The district court explicitly informed the jury that it “may” infer, and not that it “must” infer, intent. This circuit has approved similar jury instructions that allow the jury to infer intent from the natural and probable consequences of an act. See, e.g., Hill v. Kemp, 833 F.2d 927, 930 (11th Cir.1987) (charge was “simply a classic circumstantial evidence charge indicating that the jury may make certain inferences from the evidence”); United States v. Cotton, 770 F.2d 940, 946 (11th Cir.1985) (jury instruction did not relieve prosecution of its burden of proof nor would undermine jury’s fact-finding responsibilities). Examining the jury charge as a whole shows that the court did not relieve the government of its burden of persuasion beyond a reasonable doubt of every essen tial element of the crime. We conclude that the district court did not" }, { "docid": "23009169", "title": "", "text": "trial. Without clear instruction on intent, they claim a jury would be unable to separate “ ‘guilt by association’ from guilt established by the evidence in accordance with the law.” The key to determining whether the instruction operated to deny the appellants’ constitutional rights is the actual effect of that charge on the jury. Id. at 514, 99 S.Ct. at 2454; McInerney v. Berman, 621 F.2d 20, 23 (1st Cir.), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 85 (1980). Sandstrom v. Montana holds that the instruction given here, which a reasonable juror could have viewed as a mandatory presumption, 442 U.S. at 515, 99 S.Ct. at 2455, that was either irrebuttable, or that shifted the burden of persuasion to the defendant on the element of intent, id. at 517, 99 S.Ct. at 2456, was unconstitutional. Id. at 524, 99 S.Ct. at 2459. The Court also mentioned in a footnote that the potential for the jurors adopting either of these interpretations of the presumption was not removed by the other instructions given by the trial judge: that the accused was presumed innocent until proven guilty and that the State had the burden of proving beyond a reasonable doubt that the accused caused the death of the decedent purposely or knowingly. Id. at 518 n.7, 99 S.Ct. at 2456 n.7. The Government argues that this comment by the Court “strongly” implies that other specific instructions could have cured the effect of the presumption instruction. Cf. United States v. Spiegel, 604 F.2d 961, 969 n.15 (5th Cir. 1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980) (one possible reading of Sandstrom could allow other instructions to cure presumption instruction). Generally speaking, we do not think that the intent instruction as a whole, even when coupled with the trial court’s general instructions here that the prosecution always has the burden of proving each element of the crime and that no defendant has the burden of producing any evidence, obviates the possibility that jurors could give the presumption conclusive or persuasion-shifting effect. See 442 U.S. at 519, 99" }, { "docid": "23352613", "title": "", "text": "more indicative of his true state of mind than what he says. The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to you. You may infer knowledge if you find beyond a reasonable doubt that the witness refused to be enlightened, refused to take notice. Stated another way, a defendant’s knowledge may be inferred from a willful blindness to the existence of the fact. It is entirely up to you as to whether you find any deliberate closing of the eyes and the inference to be drawn from any such evidence. Any such evidence showing negligence or mistake is not enough to support a finding of willfulness or knowledge.” Appellants Gintner, Bancroft, and Ciampaglia objected to this charge, arguing that it “deprived the jury of its decision as to whether actions are more indicative of one’s state of mind” and “shifted the burden to the defendants to disprove their actions.” They now argue that the instruction constitutes reversible error. We disagree. The district court never instructed the jury that it had to draw an inference of intent from defendant’s actions. Taken alone, the second paragraph of the instruction could possibly have been misread by a juror as mandating such an inference. Taken as a whole, however, see Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), the instructions on knowledge could not have been so read by a reasonable juror, compare Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. The trial judge repeatedly used the word “may” throughout the instruction, and explicitly stressed that the decision as to whether any inferences should be drawn “is entirely up to” the jury. The trial judge also instructed the jurors that the prosecution must prove “each and every element of the case or the charge beyond a reasonable doubt” and that the burden of proof “is always on the government” and “never shifts”. Appellants also contend that even if the instruction did not shift the burden" }, { "docid": "2627795", "title": "", "text": "error for the lower court to instruct the jury that it could infer the existence of specific knowledge on the part of the defendant based solely upon the act of driving the automobile across the border because this instruction impermissibly shifted the burden of proof. In support of this proposition, he relies on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and United States v. Martinez, 514 F.2d 334 (9th Cir.1975). In Sandstrom, the Supreme Court reversed a defendant’s conviction based upon an analysis of a jury instruction which stated that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Sandstrom, 442 U.S. at 513, 99 S.Ct. at 2453. The Court held that the presumption contained in the instruction could have been interpreted by a reasonable jury as conclusive or persuasion-shifting. In Martinez, this court held that under the facts of that case, an instruction which stated “that when one drives a car laden with contraband, there is a substantial basis from which the trier of fact ... may infer that the driver has knowing possession of the contraband ...” was impermissible, and warranted remand for a new trial. Martinez 514 F.2d at 341. As in Martinez, the jury instruction in this ease permitted the jurors to return a guilty verdict on the basis of insufficient evidence. The instruction was improper in that it failed to inform the jurors that they could infer knowledge only if they found that Rubio-Villareal drove a truck that contained concealed cocaine and they found that there were other facts (such as prior control of the vehicle), which, when considered along with that circumstance, supported the inference. Instead of receiving an instruction requiring them to find sufficient facts (including the driving of the vehicle) to warrant an inference of knowledge, the jurors were told that it was enough that Rubio-Villareal drove a vehicle containing contraband. In Martinez, upon finding that the jury instruction was deficient, we reversed and remanded for a new trial without considering whether the error was harmless. Our subsequent cases have made" } ]

[ { "docid": "915518", "title": "", "text": "of, and (3) a likelihood that the injury will be redressed by a favorable decision. Id. A plaintiff bears the burden of showing that she has standing for each form of relief sought. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). For Simic’s case to survive, she must show that she has standing to seek either injunctive relief or damages, or both. To have standing for prospective injunctive relief, a plaintiff must face a “real and immediate” threat of future injury as opposed to a threat that is merely “conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal quotation marks omitted); see also Sierakowski v. Ryan, 223 F.3d 440, 444-45 (7th Cir. 2000). Unlike with damages, a past injury alone is insufficient to establish standing for purposes of prospective in-junctive relief: “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” Lyons, 461 U.S. at 95-96, 103 S.Ct. 1660, citing O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Simic’s claimed threat of future injury is conjectural. The threat is contingent upon her once again driving while using her cell phone and receiving a citation under the Chicago ordinance. This hypothetical scenario would also require her to violate a separate law that she does not challenge — the Illinois statute that prohibits using cell phones while driving. 625 ILCS 5/12-610.2. For purposes of standing to seek injunctive relief against future harm, courts generally assume that litigants “will conduct their activities within the law and so avoid prosecution and conviction.” O’Shea, 414 U.S. at 497, 94 S.Ct. 669. That assumption surely holds with respect to obeying laws that are not themselves the target of a party’s constitutional challenge, as was the case in O’Shea and is the case here. We hope, and in any event we must assume, that Simic does not have" } ]

[ { "docid": "13211634", "title": "", "text": "Humphries in her official capacity as director of the DNR. The jurisdiction of the federal court is limited by the threshold constitutional requirement of an actual case or controversy. See U.S. Const, art. Ill, § 2. “Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotations and citations omitted). Further, “[pjast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” L.A. v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). The district court correctly applied Lyons to the case at hand. In Lyons, the plaintiff sought a permanent injunction against the defendant city of Los Angeles, enjoining it from using chokeholds during an arrest unless the victim was threatening the immediate use of deadly force. Lyons, 461 U.S. at 98, 103 S.Ct. 1660. The Court held that the plaintiff failed to establish a case or controversy justifying the injunction sought because his standing depended on whether he was likely to suffer future injury from a police officer’s chokehold. Id. at 105, 103 S.Ct. 1660. The Court held that the plaintiff lacked standing because he was unable to show an imminent threat of future police brutality. Id. Ultimately, the Court concluded that, [ajbsent a sufficient likelihood that he will again be wronged in a similar way, [the plaintiff] is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional. Id. at 111, 103 S.Ct. 1660. Here, the district court correctly applied this reasoning to Taylor. Taylor has alleged that a custom or practice of the DNR is unconstitutional. Like the plaintiff in Lyons," }, { "docid": "7672304", "title": "", "text": "burden of establishing standing, Raines v. Byrd, 521 U.S. 811, 818-19, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37-38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Plaintiffs lack standing to pursue their equitable claims. To obtain prospective relief, such as a declaratory judgment or an injunction, a plaintiff must show, inter alia, “a sufficient likelihood that he [or she] will again be wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). That is, a plaintiff must demonstrate a “certainly impending” future injury. Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotation marks omitted); accord O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). In establishing a certainly impending future injury, a plaintiff cannot rely solely on past injuries; rather, the plaintiff must establish how he or she will be injured prospectively and that the injury would be prevented by the equitable relief sought. Whitmore, 495 U.S. at 158-59, 110 S.Ct. 1717; Lyons, 461 U.S. at 102-03, 103 S.Ct. 1660; O’Shea, 414 U.S. at 495-96, 94 S.Ct. 669. Neither party’s national convention will be in New York City in 2012, and there is no prospect that a national convention will be coming anytime to the Garden, or that, if one did, similar policies regarding pedestrian traffic and protesters would be enacted or enforced. Since Plaintiffs have not demonstrated a certainly impending future injury that could be redressed by this Court, we lack jurisdiction to adjudicate their claims for equitable relief. Standing to seek retrospective relief, such as damages, requires a showing that [1] the plaintiff suffered an injury in fact that is concrete and not conjectural or hypothetical, [2] the injury is fairly traceable to the actions of the defendant, and [3] the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs make the requisite showing as to their claim" }, { "docid": "19565244", "title": "", "text": "show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.\" Id. at 1548 (internal quotation marks omitted). An injury \"need not be actualized\" to satisfy Article III. Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). A \"future injury\" can suffice, so long as it is \"certainly impending, or there is a substantial risk that the harm will occur.\" Susan B. Anthony List v. Driehaus , 573 U.S. 149, 157, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (emphasis added) (internal quotation marks omitted); see also Clapper v. Amnesty Int'l USA , 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (noting that plaintiffs need not \"demonstrate that it is literally certain that the harms they identify will come about\"). Thus, for example, in a previous challenge to the conduct of the decennial census, the Supreme Court found that the plaintiffs had established standing \"on the basis of the expected effects\" of the challenged conduct \"on intrastate redistricting\" - in particular, based on a factual finding that certain jurisdictions were \"substantially likely ... [to] suffer vote dilution in state and local elections.\" Dep't of Commerce v. U.S. House of Representatives , 525 U.S. 316, 332-33, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) (emphasis added) (internal quotation marks omitted). Ultimately, the injury-in-fact requirement is meant to \"ensure that the plaintiff has a personal stake in the outcome of the controversy.\" Susan B. Anthony List, 573 U.S. at 158, 134 S.Ct. 2334 (internal quotation marks omitted). Standing's second element requires proof that the plaintiff's injury is \"fairly traceable\" to the defendant's challenged conduct. Put differently, \"there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.\" Lujan , 504 U.S. at 560, 112 S.Ct. 2130 (alterations and internal quotation marks omitted). Significantly," }, { "docid": "12915948", "title": "", "text": "We conclude that the Wikimedia Allegation does and the Dragnet Allegation does not. A. 1. Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const, art. Ill, § 2. “The doctrine of standing gives meaning to these constitutional limits by ‘identifying] those disputes which are appropriately resolved through the judicial process.’ ” Susan B. Anthony List v. Driehaus, — U.S.-, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To establish standing, a plaintiff must show: (1) an injury in fact; (2) a\" sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Id. “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan, 504 • U.S. at 560, 112 S.Ct. 2130). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks omitted). “The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Id. at 1548 n.7. The purpose of the imminence requirement “is to ensure that the alleged injury is not too speculative for Article III purposes.” Clapper, 133 S.Ct. at 1147. The “threatened injury must be certainly impending to constitute injury in fact, and ... [ajllegations of possible future injury are not sufficient.” Id. (second alteration in original) (internal quotation marks omitted). “[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct." }, { "docid": "10145692", "title": "", "text": "standing. Fair Hous. of Marin v. Combs, 285 F.3d 899, 902 (9th Cir. 2002). III Article III of the Constitution limits federal courts to hearing only cases and controversies. To establish standing to sue, a plaintiff must show: (1) an injury that is concrete and particularized and actual or imminent; (2) a causal connection between the injury and defendant’s challenged action; and (3) redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Apart from this, standing for injunctive relief requires that a plaintiff show a “real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); see also City of Los Angeles v. Lyons, 461 U.S. 95, 107-08, 103 S.Ct 1660, 75 L.Ed.2d 675 (1983). The parties do not dispute that Updike satisfies the general standing requirements of Article III, but instead dispute whether Updike has shown a real and immediate threat that the injury will be repeated—which is necessary for standing to seek injunctive relief. A Updike offers no evidence of a “real or immediate threat” that he would be “wronged again” by way of the State’s failure to provide an ASL interpreter at future court appearances. Lyons, 461 U.S. at 111, 103 S.Ct. 1660. Evidence in the record further indicates that this wrongful conduct will likely not occur again, given that information about necessary accommodations are now noted in the booking registers—the documents relied upon by OJD to set hearing dates—rather than the pretrial release reports. Updike has not met. his burden of showing that the State’s allegedly wrongful behavior will likely recur. Moreover, Updike’s evidence is insufficient to establish that any such wrongful behavior is likely to recur against him, ie., that he is likely again to be a pretrial detainee. Updike lacks standing to pursue his claims for injunctive relief against the State because it is no more than speculation and conjecture that the State will not provide an ASL interpreter and auxiliary aids if Updike makes an appearance as a pretrial detainee again. See id. at 103," }, { "docid": "19472971", "title": "", "text": "is \"at risk of future harm regarding her non-pecuniary damages.\" (Pl. Opp'n to Def. Mot. (\"Pl. Opp'n\") 24, Docket Entry No. 23.) A plaintiff seeking injunctive relief \"must show the three familiar elements of standing: injury in fact, causation, and redressability.\" Cacchillo v. Insmed, Inc. , 638 F.3d 401, 404 (2d Cir. 2011) (citing Summers v. Earth Island Inst. , 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ). \"[T]o meet the constitutional minimum of standing\" for injunctive relief, a plaintiff \"must carry the burden of establishing that 'he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct.' \" Shain v. Ellison , 356 F.3d 211, 215 (2d Cir. 2004) (quoting City of Los Angeles v. Lyons , 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ); see also Nicosia , 834 F.3d at 239 (\"Plaintiffs lack standing to pursue injunctive relief where they are unable to establish a 'real or immediate threat' of injury.\" (first citing Lyons , 461 U.S. at 111-12, 103 S.Ct. 1660 ; and then citing Shain , 356 F.3d at 215-16 ) ); Pungitore v. Barbera , 506 Fed.Appx. 40, 41 (2d Cir. 2012) (\"[W]hen seeking prospective injunctive relief, the plaintiff must prove the likelihood of future or continuing harm.\"). The alleged injury \"must be 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' \" Knife Rights, Inc. v. Vance , 802 F.3d 377, 383 (2d Cir. 2015) (quoting Susan B. Anthony List v. Driehaus , 573 U.S. ----, ----, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) ); Am. Civil Liberties Union v. Clapper , 785 F.3d 787, 800 (2d Cir. 2015) (\"The Supreme Court has 'repeatedly reiterated that \"threatened injury must be certainly impending to constitute injury in fact,\" and that \"[a]llegations of possible future injury\" are not sufficient.' \" (alteration in original) (quoting Clapper v. Amnesty Int'l USA , 568 U.S. 398, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ) ). A plaintiff \"cannot rely on past injury to satisfy the injury requirement" }, { "docid": "20612375", "title": "", "text": "challenge is limited to an actual case or controversy. See U.S. Const., art. Ill, § 2. “The doctrine of standing gives meaning to these constitutional limits,” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014), by requiring a plaintiff to “allege[] such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf,” Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted). To establish Article III standing, then, a plaintiff must show “(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a-‘likelihood]’ that the injury ‘will be redressed by a favorable decision.’ ” Susan B. Anthony List v. Driehaus, 134 S.Ct. at 2341 (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The district court here concluded that plaintiffs failed to carry their standing burden at the first element. We review plaintiffs’ challenge to this legal conclusion de novo, borrowing from the familiar Rule 12(b)(6) standard, which instructs us to construe the pleadings in plaintiffs’ favor, accepting as true all material factual allegations contained therein. See W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir.2008). For an alleged injury to support constitutional standing, it “must be ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Susan B. Anthony List v. Driehaus, 134 S.Ct. at 2341 (quoting Lujan v. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (other quotation marks omitted)). The Supreme Court has described the imminence requirement differently in different contexts, without specifying whether the descriptions are synonymous or distinct. See, e.g., Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1150 & n. 5, 185 L.Ed.2d 264 (2013) (employing “certainly impending” standard while acknowledging cases referencing “substantial risk” standard, but declining to address possible distinction); accord Susan" }, { "docid": "5739258", "title": "", "text": "Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Perry, 186 F.3d at 829; American Federation of Govt. Employees v. Cohen, 171 F.3d 460, 466 (7th Cir.1999). Perry cannot meet that test here. As the district court recognized, this case is analogous to that presented in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In that case, Lyons sued the City of Los Angeles and certain of its police officers, alleging that the officers, without provocation, subjected him to a chokehold after stopping him for a traffic violation. He sought damages and an injunction barring the use of chokeholds except where a suspect threatens the use of deadly force. Although recognizing that Lyons had standing to seek damages, the Supreme Court held that he lacked standing for injunctive relief. The Court held that “ ‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.’ ” Id. at 102, 103 S.Ct. 1660, quoting O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Because Lyons could not show a realistic threat that he would be subjected to a chokehold in the future, he possessed standing only to seek damages for the past conduct. In other words, Lyons lacked a personal stake in the future application of the chokehold, because he could not demonstrate a realistic threat that he would be again subjected to a chokehold. Perry’s situation parallels that in Lyons because Perry has alleged only past injury, but cannot demonstrate a realistic threat that he would be the subject of another forcible eviction in Cook County that would result in the seizure of his property. In fact, Perry makes no argument in the appeal of Perry I that he faces that future threat. He argues instead that he has standing to seek prospective relief because defendant Sheahan still possesses some of his property that was seized during the eviction. Although poorly articulated, his argument appears be" }, { "docid": "592269", "title": "", "text": "L.Ed.2d 351 (1992). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. at 561, 112 S.Ct. 2130. 1. City of Los Angeles v. Lyons In City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the Supreme Court set forth the specific standing requirements for plaintiffs seeking injunctive relief. In Lyons, the plaintiff sought an injunction that would prevent Los Angeles police officers from using control chokeholds, except in situations in which an individual appeared to be threatening the immediate use of deadly force. Id. at 98, 103 S.Ct. 1660. Relying on past Supreme Court precedent, the Court held that Lyons lacked standing to sue for such injunctive relief because he failed to show that he was “likely to suffer future injury from the use of the choke-holds by police officers.” Id. at 105, 103 S.Ct. 1660. The Court stated that although Lyons may have been illegally choked by the police on an earlier date, this past injury was sufficient to provide him standing to sue for damages, but not an injunction. In seeking injunctive relief, the mere fact that one has been injured in the past is insufficient to satisfy the standing requirement. Id. at 95-96, 102, 103 S.Ct. 1660 (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” [quoting O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ] [internal quotation marks omitted] [alteration in original] ); Lujan, 504 U.S. at 564, 112 S.Ct. 2130 (quoting Lyons); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lyons approvingly); Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir.1992) (“[Lyons] reaffirmed the principle that past exposure to harm will not, in and of itself, confer standing upon a litigant to obtain equitable relief absent a sufficient likelihood that he will again be wronged in a similar way.” [internal" }, { "docid": "19565243", "title": "", "text": "(1) \"an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.\" Gill v. Whitford , --- U.S. ----, 138 S.Ct. 1916, 1929, 201 L.Ed.2d 313 (2018) (internal quotation marks omitted); accord Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). The plaintiff must make this showing \"in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation.\" Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Ultimately, the facts \"(if controverted) must be supported adequately by the evidence adduced at trial.\" Id. (internal quotation marks omitted). Injury in fact is the \"first and foremost of standing's three elements.\" Spokeo , 136 S.Ct. at 1547 (internal quotation marks and alterations omitted). \"To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.\" Id. at 1548 (internal quotation marks omitted). An injury \"need not be actualized\" to satisfy Article III. Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). A \"future injury\" can suffice, so long as it is \"certainly impending, or there is a substantial risk that the harm will occur.\" Susan B. Anthony List v. Driehaus , 573 U.S. 149, 157, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (emphasis added) (internal quotation marks omitted); see also Clapper v. Amnesty Int'l USA , 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (noting that plaintiffs need not \"demonstrate that it is literally certain that the harms they identify will come about\"). Thus, for example, in a previous challenge to the conduct of the decennial census, the Supreme Court found that the plaintiffs had established standing \"on the basis of the" }, { "docid": "16406558", "title": "", "text": "such relief. The “irreducible constitutional minimum” of standing requires a plaintiff to show that: (1) it has suffered a concrete and particularized injury in fact which is actual or imminent, not “conjectural or hypothetical,” (2) the injury is fairly traceable to the defendant’s allegedly unlawful conduct, and (3) the injury will likely be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While the plaintiff alleges that she purchased ANR products as a result of the defendants’ allegedly false or misleading advertising, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Moreover, “[a]n allegation of future injury may suffice” but only “if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (citing Clapper v. Amnesty Int’l USA — U.S.-, 133 S.Ct. 1138, 1147, 1150 n. 5, 185 L.Ed.2d 264 (2013) (internal quotation marks omitted)). While Tomasino suggests that she remains a potential Estee Lauder customer and is likely to be misled again, Pl.’s Opp’n to Mot. to Dismiss at 29, ECF No. 14, she has not alleged a sufficient future injury to establish standing to assert her claims for injunctive relief because she has demonstrated that she is, in fact, unlikely to purchase ANR products again. See Vaccariello v. XM Satellite Radio, Inc., 295 F.R.D. 62, 68 (S.D.N.Y.2013). Indeed, she has made clear that she does not believe the ANR products have the effects advertised by Estee Lauder, and that she would not have purchased them in the first place absent the allegedly misleading advertisements. See Am. Compl. ¶¶ 19 (“Plaintiff would not have purchased [the ANR Products] ... had Estee Lauder not made such false and deceptive claims and instead disclosed the true nature of its products”), 83 (plaintiff received" }, { "docid": "21204753", "title": "", "text": "and because his claims were not ripe for review. To establish standing, a plaintiff must allege “(1) an injury that is (2) ‘fairly traceable to the defendant’s allegedly unlawful conduct’ and that is (3) ‘likely to be redressed by the requested relief.’ ” Id. at 349 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Where a plaintiff seeks injunctive relief, a natural outgrowth of these factors requires a showing of ongoing injury or an imminent threat of future injury. See O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding in-junctive relief ... if unaccompanied by any continuing, present adverse effects.”); but see Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“Past wrongs [are] evidence bearing on ‘whether there is a real and immediate threat of repeated injury.’ ” (quoting O’Shea, 414 U.S. at 495-96, 94 S.Ct. 669)). Although past harm to a plaintiff seeking injunctive relief can serve as relevant evidence, he must also show a threat that is “sufficiently real and immediate” to establish the “prospect of future injury” as part of the standing requirement. Lyons, 461 U.S. at 102-103, 103 S.Ct. 1660 (citing O’Shea, 414 U.S. at 496-97, 94 S.Ct. 669). The district court found that Warshak showed a sufficient threat of imminent harm, in light of the past seizures of his emails and the fact that the government “refused to pledge not to obtain or enforce future 2703(d) orders of this kind against other e-mail accounts of Warshak’s.” D. Ct. Op. at 12. The government relies primarily upon Lyons to support its contention that Wars-hak’s claims are largely hypothetical, and do not support a showing of imminent harm. In Lyons, the plaintiff sought in-junctive relief against the use of choke-holds by Los Angeles police after he had been put in a chokehold himself. 461 U.S. at 105, 103 S.Ct. 1660. The Supreme Court determined that the plaintiff had failed to" }, { "docid": "22569810", "title": "", "text": "oft-repeated passages in Lujan, standing requires that (1) the plaintiff suffered an injury in fact, i.e., one that is sufficiently “concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” (2) the injury is “fairly traceable” to the challenged conduct, and (3) the injury is “likely” to be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotation marks and citations omitted). Standing must be shown with respect to each form of relief sought, whether it be injunctive relief, damages or civil penalties. Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Here, only liability and equitable relief were at issue in the district court, not damages. Thus, we consider only whether at least one named plaintiff satisfies the standing requirements for in-junctive relief. The standing formulation for a plaintiff seeking prospective injunctive relief is simply one implementation of Lu-jan’s requirements. The plaintiff must demonstrate that he has suffered or is threatened with a “concrete and particularized” legal harm, Lujan, 504 U.S. at 560, 112 S.Ct. 2130, coupled with “a sufficient likelihood that he will again be wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). As to the second inquiry, he must establish a “real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). “[P]ast wrongs do not in themselves amount to [a] real and immediate threat of injury necessary to make out a case or controversy.” Lyons, 461 U.S. at 103, 103 S.Ct. 1660. However, “past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury.” O’Shea, 414 U.S. at 496, 94 S.Ct. 669. In addition, the claimed threat of injury must be likely to be redressed by the prospective injunctive relief. Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir.1998) (recognizing that “[p]laintiffs need not demonstrate that there" }, { "docid": "2076943", "title": "", "text": "section 1986. Accordingly, Count X of the amended complaint will be dismissed. B. Standing — Case or Controversy under Article III Defendants also move to dismiss Plaintiffs requests for declaratory judgment and injunctive relief for failure to meet Article Ill’s case or controversy requirement. Defendants argue that Plaintiff has not pled facts to demonstrate that his alleged injury is likely to be repeated. The amended complaint seeks “[declaratory [r]elief declaring that all Defendants’ actions stated herein are unconstitutional” and “[i]njunctive [r]elief barring all Defendants from violating [Plaintiffs] constitutional rights in the future by engaging in the unconstitutional actions stated herein.” (Am. Compl. ¶¶ 123-24.) Standing under Article III has three requirements: “(1) an injury in fact that is actual and imminent, not ‘conjectural’ or ‘hypothetical’; (2) a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged conduct of the defendant; and (3) a showing that it is likely, as opposed to merely speculative, that a favorable decision will redress the injury.” McBride v. Cahoone, 820 F.Supp.2d 623, 633 (E.D.Pa.2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Plaintiff has failed to plead facts that establish he is substantially likely to suffer an excessive use of force injury after fleeing from police officers in the future. See Blakeney v. Marsico, 340 Fed.Appx. 778, 780 (3d Cir.2009) (dismissing claim for declaratory relief where plaintiff did not allege he would be subject to constitutional violations in the future); see also City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). “While a § 1983 plaintiffs allegation that he has suffered from unconstitutional practices may be sufficient to establish standing to sue for damages, ‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding in-junctive relief!.]’ ” Brown v. Fauver, 819 F.2d 395, 400 (3d Cir.1987) (quoting O’Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). Furthermore, the declaratory and injunctive relief sought by Plaintiff essentially demands" }, { "docid": "23487722", "title": "", "text": "of himself or herself or any other member of the class. See O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The Supreme Court has recognized three requirements of Article III standing: It is by now well settled that “the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” United States v. Hays, 515 U.S. 737, 742-43, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). For injunctions, an additional inquiry is required, namely that Plaintiffs show that they are likely to suffer future injury by the defendant and that the sought-after relief will prevent that future injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“ ‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding in-junctive relief.’ ” (quoting O’Shea, 414 U.S. at 495-96, 94 S.Ct. 669)); see also Pederson, 213 F.3d at 869 (“Additionally, courts have refused to adjudicate cases that raise only generalized grievances.”). However, if the injury is accompanied by “any continuing, present adverse effects,” standing for injunctive relief can be found. Lyons, 461 U.S. at 102, 103 S.Ct. 1660 (internal quotations omitted) (quoting O’Shea, 414 U.S. at 495-96, 94 S.Ct. 669); see also Soc’y of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir.1992) (“To obtain equitable relief for past wrongs, a plaintiff must demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.”). Both standing and class certification must be addressed on a claim-by-claim basis. See Steel Co. v. Citizens for a Better" }, { "docid": "20612376", "title": "", "text": "plaintiffs failed to carry their standing burden at the first element. We review plaintiffs’ challenge to this legal conclusion de novo, borrowing from the familiar Rule 12(b)(6) standard, which instructs us to construe the pleadings in plaintiffs’ favor, accepting as true all material factual allegations contained therein. See W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir.2008). For an alleged injury to support constitutional standing, it “must be ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Susan B. Anthony List v. Driehaus, 134 S.Ct. at 2341 (quoting Lujan v. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (other quotation marks omitted)). The Supreme Court has described the imminence requirement differently in different contexts, without specifying whether the descriptions are synonymous or distinct. See, e.g., Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1150 & n. 5, 185 L.Ed.2d 264 (2013) (employing “certainly impending” standard while acknowledging cases referencing “substantial risk” standard, but declining to address possible distinction); accord Susan B. Anthony List v. Driehaus, 134 S.Ct. at 2841 (“An allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” (quoting Clapper)); see also Hedges v. Obama, 724 F.3d 170, 195-96 (2d Cir.2013). Where, as here, certain plaintiffs assert injury from threatened prosecution, the Supreme Court has instructed that imminence does “not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat— for example, the constitutionality of a law threatened to be enforced.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (collecting cases); accord Susan B. Anthony List v. Driehaus, 134 S.Ct. at 2342; see generally Steffel v. Thompson, 415 U.S. 452, 480, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (Rehnquist, J., concurring) (observing that “declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity”). Rather, in the context of pre-enforcement challenges to criminal statutes, imminent injury can be established by plausible" }, { "docid": "19472972", "title": "", "text": ", 461 U.S. at 111-12, 103 S.Ct. 1660 ; and then citing Shain , 356 F.3d at 215-16 ) ); Pungitore v. Barbera , 506 Fed.Appx. 40, 41 (2d Cir. 2012) (\"[W]hen seeking prospective injunctive relief, the plaintiff must prove the likelihood of future or continuing harm.\"). The alleged injury \"must be 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' \" Knife Rights, Inc. v. Vance , 802 F.3d 377, 383 (2d Cir. 2015) (quoting Susan B. Anthony List v. Driehaus , 573 U.S. ----, ----, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) ); Am. Civil Liberties Union v. Clapper , 785 F.3d 787, 800 (2d Cir. 2015) (\"The Supreme Court has 'repeatedly reiterated that \"threatened injury must be certainly impending to constitute injury in fact,\" and that \"[a]llegations of possible future injury\" are not sufficient.' \" (alteration in original) (quoting Clapper v. Amnesty Int'l USA , 568 U.S. 398, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ) ). A plaintiff \"cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he ... will be injured in the future.\" Shain , 356 F.3d at 215 ; see also Nicosia , 834 F.3d at 239 (stating that past injuries do not confer standing to seek injunctive relief); Pungitore , 506 Fed.Appx. at 42 (stating that, while past wrongs may be \"evidence bearing on whether there is a real and immediate threat of repeated injury,' such evidence 'does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects' \" (quoting Lyons, 461 U.S. at 102, 103 S.Ct. 1660 ) ). \"In establishing a certainly impending future injury, ... the plaintiff must establish how he or she will be injured prospectively and that the injury would be prevented by the equitable relief sought.\" Marcavage v. City of New York , 689 F.3d 98, 103 (2d Cir. 2012) (collecting cases). \"[A]t the pleading stage, standing allegations need not be crafted with precise detail, nor must the plaintiff prove his allegations of injury.\" Baur" }, { "docid": "20591626", "title": "", "text": "J.A. Vol. I at 36:2-13. . Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). . Steele v. Blackman, 236 F.3d 130, 134 n. 4 (3d Cir.2001). . Pub. Interest Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir.1997). . Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 358-59 (3d Cir.2015) (internal quotation marks omitted and punctuatiop modified) (quoting Susan B. Anthony List v. Driehaus, - U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014)). . Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir.2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)), cert. denied, — U.S. -, 135 S.Ct. 1738, 191 L.Ed.2d 702 (2015). . N.J. Physicians, Inc. v. President of the United States, 653 F.3d 234, 238 (3d Cir.2011) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), and Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). . Defenders of Wildlife, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. . Constitution Party of Pa. v. Aichele, 757 F.3d 347, 364 (3d Cir.2014) (quoting Clapper v. Amnesty Int’l USA, - U.S. -, 133 S.Ct. 1138, 1148, 185 L.Ed.2d 264 (2013)). . Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137-38 (3d Cir.2009) (quoting Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). . Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 418 (3d Cir.2013) (citing The Pitt News v. Fisher, 215 F.3d 354, 360-61 (3d Cir.2000)). . Toll Bros., 555 F.3d at 142 (quoting Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000)). . Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted). . Berg v. Obama, 586 F.3d 234, 238 (3d Cir.2009). . Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. . In re Schering" }, { "docid": "19622569", "title": "", "text": "challenged action. Spokeo , 136 S.Ct. at 1552 (Thomas, J., concurring) (quoting Ex parte Levitt , 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937) (per curiam) ). The injury or threat of injury must be \"concrete and particularized\" rather than conjectural or hypothetical. Lujan , 504 U.S. at 560, 112 S.Ct. 2130. Thus, where standing is based upon an alleged future injury, the plaintiff must demonstrate either that the harm is certainly impending, or that there is a substantial risk the harm will occur. Susan B. Anthony List v. Driehaus , 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014). Injury-in-fact also exists where there is a \"substantial risk\" that harm will occur, which prompts plaintiffs reasonably to incur costs to mitigate or avoid that harm. Clapper v. Amnesty Int'l USA , 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). \"For standing purposes, a loss of even a small amount of money is ordinarily an 'injury.' \" Czyzewski v. Jevic Holding Corp. , --- U.S. ----, 137 S.Ct. 973, 983, 197 L.Ed.2d 398 (2017) ; see also Carpenters Indus. Council v. Zinke , 854 F.3d 1, 5 (D.C. Cir. 2017) (\"A dollar of economic harm is still an injury-in-fact for standing purposes.\"); Council of Ins. Agents & Brokers v. Molasky-Arman , 522 F.3d 925, 932 (9th Cir. 2008) (noting that Supreme Court has found injury-in-fact even where magnitude of harm was only a few dollars). The evidence establishes that Plaintiffs will be injured in at least three ways. These injuries include, (1) the loss of federal funding, (2) an increased risk of losing political representation, and (3) the expenditure of funds for census outreach to mitigate the substantial risk of harm flowing from the citizenship question. a. Loss of Federal Funding A plaintiff who is likely to lose federal funding due to a differential undercount of the population has suffered an injury-in-fact for the purposes of Article III standing. Carey v. Klutznick , 637 F.2d 834, 838 (2d Cir. 1980) ; City of Detroit v. Franklin , 4 F.3d 1367, 1373-1375" }, { "docid": "11730105", "title": "", "text": "he felt compelled to make a sworn verification or engage a notary, or that he even responded to the challenged requests, so his allegations were insufficient to confer jurisdiction upon the federal courts. Lyshe appeals, arguing that this court has subject matter jurisdiction and that his complaint states a claim upon which relief may be granted. II. Article III of the Constitution limits the jurisdiction of federáis courts to hear only actual cases and controversies. U.S. Const, art. 3, § 2. The doctrine of standing aids us in defining these limits. The plaintiff bears the burden of establishing standing. Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). To satisfy the “irreducible constitutional minimum of standing,” the plaintiff must establish that: (1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent rather than conjectural or hypothetical; (2) that there is a causal connection between the injury and the defendant’s alleged wrongdoing; and (3) that the injury can likely be redressed. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At dispute here is only whether Lyshe suffered an injury in fact. The existence of an abstract injury is insufficient for a plaintiff to carry his burden on this element. City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Rather, a plaintiff must establish that he has a “personal stake in the outcome of the controversy.” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Whether a party has standing is an issue of the court’s subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Allstate Ins. Co. v. Global Med. Billing, Inc., 520 Fed.Appx. 409, 410-11 (6th Cir. 2013) (citing Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012)). We review such matters de novo. McGlone v. Bell, 681 F.3d 718," } ]

[ { "docid": "22587855", "title": "", "text": "sentencing, beginning with his arrest by the New York Police Department on October 18, 1989. The district court dismissed the petition because, inter alia, it was improperly brought as a Section 2255 claim instead of a Section 2241 claim. The court found that Section 2241 was the proper method for raising “Challenges of sentence computation” which “must be addressed to a court in the district in which [the petitioner] is incarcerated and the petitioner must first exhaust all administrative remedies.” Chambers v. United States, No. CV94-1804, at 6 (E.D.N.Y. Feb. 6, 1995) (citing Velasco v. United States, 1992 WL 135029 (E.D.N.Y. May 28, 1992)). , On October 5, 1995, Chambers filed a second petition alleging the same claim in the Middle District of Pennsylvania, where he was incarcerated. The Pennsylvania district court construed the petition as a Section 2241 claim and denied it on its merits. Chambers v. Holland, 920 F.Supp. 618 (M.D.Pa.), aff'd, 100 F.3d 946 (3d Cir.1996) (unpublished order). On June 11, 1996, Chambers filed a third petition in the Eastern District of New York that challenged count two of his conviction under Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (conviction under 18 U.S.C. § 924 requires active employment of firearm, not mere possession). On September 16,1996, Chambers filed yet a fourth petition raising the same challenge to the computation of his sentence that he had raised in the 1994 and 1995 motions. The district court found that the June 11, 1996 and September 16, 1996 petitions were motions filed pursuant to Section 2255, and were thus successive to Chambers’s previous motions filed under Section 2255 in 1994 and 1995. Accordingly, the district court transferred the petitions to this court, as required by Liriano v. United States, 95 F.3d 119 (2d Cir.1996). Chambers then filed a motion opposing transfer and an application for leave to file a successive Section 2255 motion pursuant to 28 U.S.C. § 2244. Section (b)(3)(A) of 28 U.S.C. § 2244, known as the “gatekeeping provision” of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No." } ]

[ { "docid": "23060975", "title": "", "text": "section 2255 motion because a section 2255 motion must be filed with the sentencing court. Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Unit A 1981) (§ 2255 claims “may be adjudicated only in the district in which the prisoner was sentenced”), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). Here, Solsona’s complaint was filed in the Eastern District of Texas. He was sentenced, however, in the Western District of Texas. Hence, the only court that would have jurisdiction to treat Solsona’s Bivens claims based on his right to counsel as a section 2255 motion is the District Court for the Western District of Texas. Furthermore, the district court could not treat Solsona’s claims that he was denied counsel at his guilty plea and sentencing proceedings as a section 2241 motion. See United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980) (“appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing”); Lane v. Hanberry, 601 F.2d 805, 806 (5th Cir.1979) (§ 2255 “has consistently been construed to be the primary means of post-conviction relief for prisoners, allowing resort to habeas corpus only when it appears that the remedy under § 2255 would be ‘ineffective or inadequate’ ”). Hence, the district court had no jurisdiction to decide Solsona’s right to counsel claims, and the district court therefore erred in reaching the merits of these claims and in dismissing them with prejudice. The same is not true, however, of Solsona’s other claims, which are based on the premise that he is serving a sentence for felony escape, a crime for which he was neither convicted nor sentenced. We think that these claims could properly have been treated by the district court as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Section 2241 petitions, unlike section 2255 motions, need not be filed in the convicting court, but may be filed in any court with jurisdiction over the prisoner or his custodian. Blau v. United States, 566 F.2d 526, 527 (5th Cir.1978)" }, { "docid": "16490903", "title": "", "text": "Circuit would then presumably transfer the petition to the District of Connecticut, as the district of conviction and sentencing. Following the transfer, this Court directed Poindexter to file, on or before April 25, 2002, an application for leave to file a second or successive § 2255 motion. He faded to file such an application, and that phase of the matter was closed. See Poindexter v. Nash, No. 02-3588 (2d Cir. May 13, 2002). II. DISCUSSION On this appeal, Poindexter argues principally that his application was a proper petition under § 2241 because under § 2255 he cannot obtain an adequate remedy for his claims of ineffective assistance of counsel and violations of Apprendi and the ICCPR, and because his claim is one of actual innocence with respect to career offender status. We reject his contentions. A. The General Scope of § 2241 Section 2241 provides generally that the federal courts have the power to grant writs of habeas corpus, see 28 U.S.C. § 2241(a), in behalf of, inter alios, prisoners who are “in custody in violation of the Constitution or laws or treaties of the United States,” id. § 2241(c)(3). Section 2255 provides in part that a federal prisoner may seek release[ ] upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255 ¶ 1. Despite their overlapping language and the generality of § 2241, the two sections have been construed as “addressing] different types of claims.” Chambers v. United States, 106 F.3d 472, 475 (2d Cir.1997). Under § 2241, a prisoner may challenge the “execution of [his] sentence,” id. at 474 (emphasis in original), such as calculations by the Bureau of Prisons of the credit to be given for other periods of detention, or decisions to deny parole, see id. at 474-75, or conditions of confinement, see, e.g., Jiminian v. Nash, 245 F.3d 144, 146" }, { "docid": "16955430", "title": "", "text": "a variety of motions attacking the verdict, each of which the district court denied. Upon resolution of these motions, Fisher was sentenced to two concurrent ten year prison terms. On June 3, 1991, Fisher, claiming ineffective assistance of trial counsel, filed a petition for habeas corpus with the district court pursuant to 28 U.S.C. § 2255. As the basis therefor, Fisher complained of trial counsel’s failure to raise seven separate issues. At the same time, Fisher filed a motion in this court seeking a stay of his previously-filed direct appeal. We granted the stay pending the district court’s resolution of the § 2266 petition. In a comprehensive memorandum and order dated July 16, 1992, the district court considered and rejected Fisher’s ineffective assistance arguments on all grounds asserted. See United States v. Osseiran, 798 F.Supp. 861, 873-76 (D.Mass.1992). First, the court determined that the motions Fisher claimed should have been made would not have been granted. Id. at 873-76. Relying on this determination, the court then decided that Fisher had suffered no prejudice and that the representation afforded him by trial counsel was not constitutionally infirm. Id. at 876. However, the court concluded its memorandum and order by holding that it lacked the jurisdiction to deny formally Fisher’s petition at that time. Id. Subsequently, we ordered the court to enter judgment on the petition. In response, the court issued an order denying it. This appeal followed. On appeal, Fisher seeks relief on five grounds: (1) that evidence relating to a conspiracy to which he was not a party and with which he was not charged was improperly admitted against him; (2) that without evidence of the conspiracy referred to in Count II of the indictment, there was insufficient evidence to sustain his convictions; (3) that, in violation of his constitutional rights, he suffered a constructive amendment to and/or a prejudicial variance from the indictment; (4) that he was harmed by ineffective assistance of counsel; and (5) that his sentence was excessive in light of the sentence given to Osseiran. After determining the scope of the conspiracy, which is necessary for" }, { "docid": "15675144", "title": "", "text": "September 27, 1988. On November 4, 1988, he was sentenced to eight years for the drug charges and five years for the firearm charges, the terms to run consecutively. In Jahuary 1989, Bell was returned to California authorities. He was released from state custody and returned to federal custody on June 23, 1989. Federal authorities have computed Bell’s time served as beginning on June 27, 1989. Oil April 22,1992, Bell filed a motion in the United' States District Court for the Eastern District of Missouri to vacate or correct his sentence under 28 U.S.C. § 2255. Bell claimed the sentencing judge failed to give him the amount of credit federal authorities should give him for time served. Bell argued he is entitled to credit for both time he spent in custody of California authorities because of the federal “no bond” hold order and for time he spent in federal custody awaiting his federal trial. He also alleged ineffective assistance of counsel on numerous grounds. On February 10, 1994, a magistrate judge recommended Bell’s motion be denied. He found that Bell was challenging the execution of his sentence and not its lawfulness. As such, Bed’s claim was not cognizable under section 2255. The magistrate judge also considered and rejected Bell’s argument on its merits. He further found Bell’s claim of ineffective assistance of counsel groundless. The district court adopted the Findings and Recommendations of the Magistrate Judge and issued an order denying Bell’s motion on May 31, 1994. Bell appealed. CREDIT FOR TIME SERVED In this claim, Bell is not contending that his conviction was illegal, he is only contesting the execution of his sentence. This type of claim is not cognizable under section 2255. See United States v. Hutchings, 835 F.2d 185, 186 (8th Cir.1987). Bell could properly attack the execution of his sentence in a 28 U.S.C. § 2241(a) habeas petition. As the district court recognized however, it lacked subject matter jurisdiction to hear his petition because Bell was not incarcerated in the Eastern District of Missouri. If he chooses to file a section 2241(a) petition, Bell must do" }, { "docid": "16201681", "title": "", "text": "sentence. In. his section 2255 petition, Warner made three claims: (1) the United States Attorney breached the plea agreement by not recommending that the federal sentence be imposed concurrently; (2) his counsel provided ineffective assistance of counsel to Warner by counseling him to answer “no” to the court’s inquiries about any promises made to induce the guilty plea; and (3) the guilty plea, induced by his erroneous belief in a promise of a concurrent sentence, was not made knowingly and voluntarily. The district court rejected the first claim, noting that the record revealed no such promise of concurrent sentences by the federal prosecutor but instead reflected Warner and his counsel’s knowledge that the sentences were to be consecutive. With respect to the ineffective assistance of counsel claim, the district court decided that Warner was estopped from asserting his claim because of his answers at the federal sentencing hearing, stating that no promises had been made inducing him to plead guilty. Finally, the court concluded that Warner was collaterally estopped from bringing his claim that his plea was based upon misinformation because the state court of appeals had already dismissed this argument. In a previous appeal to this court, we held that Warner was estopped from raising any additional promises not fulfilled by the federal government because he knew that he would serve consecutive sentences for his federal and state pleas. However, we concluded that Warner was not es-topped from raising the ineffective assistance of counsel claim as to the proceedings at his federal plea hearing. We remanded to the district court for an eviden-tiary hearing solely on the issue of the ineffectiveness of Warner’s counsel in his federal case. See Warner v. United States, 911 F.2d 734 (6th Cir.1990). C. Consolidated Federal and State Proceedings On August 23, 1990, the day after this court remanded Warner’s section 2255 petition for an evidentiary hearing, Warner filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his state conviction. The district court consolidated this case with Warner’s already filed habeas corpus petition challenging his federal sentence, which was on" }, { "docid": "22975528", "title": "", "text": "for a federal prisoner’s challenge to his conviction and sentence, as it encompasses claims that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255, ¶ 1. In his § 2241 petition, Jiminian challenged the sentencing court’s failure to articulate reasons for the imposition of a sentence at the high end of the Guidelines range, a claim properly raised in a § 2255 motion. However, because § 2241(c)(3) allows federal courts -to entertain habeas corpus petitions from federal prisoners “in custody in violation of the Constitution or laws or treaties of the United States,” it would appear to cover Jiminian’s claim. Despite this apparent overlap between § 2255 and § 2241(c)(3), we have previously stated that, as a general rule, federal prisoners must use § 2255 instead of § 2241(c)(3) to challenge a sentence as violating the Constitution or laws of the United States. See Triestman v. United States, 124 F.3d 361, 373 (2d Cir.1997). Jiminian attempts to evade this general rule by relying on the exception in the last clause of § 2255 which permits the filing of a § 2241 petition when § 2255 provides an inadequate or ineffective remedy to test the legality of a federal prisoner’s detention. See 28 U.S.C. § 2255, ¶5. Section 2255 provides in relevant paid: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, 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 the legality of his detention. 28 U.S.C. § 2255, ¶ 5; see also Triestman, 124 F.3d at 373. In Triestman, we held that §" }, { "docid": "6416466", "title": "", "text": "United States, 209 F.3d 986, 990 (7th Cir.2000). Truss also asserts that his habeas petition should have been adjudicated on the merits. We review de novo a district court judgment dismissing a habeas corpus petition filed under 28 U.S.C. § 2241. See Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999). Under highly exceptional circumstances, a federal prisoner may challenge his conviction and imposition of sentence under § 2241, instead of § 2255, if he is able to establish under the savings clause of § 2255 that his remedy is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. § 2255 (last clause in fifth paragraph); Charles, 180 F.3d at 755-56. It is the prisoner’s burden to prove that his remedy under § 2255 is inade quate or ineffective. See Charles, 180 F.3d at 756. “[A]” district court presented with a petition for writ of habeas corpus under § 2241 should analyze that petition on its own terms, without assuming that whatever cannot proceed under § 2255 also cannot proceed under § 2241....” Gray-Bey, 209 F.3d at 990. Gray-Bey is distinguishable from Truss’s case, however, because the district court did not simply transfer Truss’s petition as though it were a § 2255 motion, but decided the merits of whether Truss could meet the threshold for bringing a § 2241 petition. The district court then found that Truss’s petition collaterally attacked his sentence, not the execution of his sentence; concluded that his petition should have been brought under § 2255; and dismissed his § 2241 petition because he had not shown that § 2255 was inadequate or ineffective to test the legality of his detention. In Charles, this court concluded that the courts invoked the savings clause essentially to permit prisoners to submit claims of actual innocence that would otherwise have been barred under AEDPA. See Charles, 180 F.3d at 756-57 (collecting cases). Thus far, the only circumstance in which this court has found § 2255 to be an ineffective or inadequate remedy is when the petition stated a facially valid claim for actual innocence. Bannerman v." }, { "docid": "22660598", "title": "", "text": "claim because he is now barred from presenting his claim to the sentencing court in a motion filed pursuant to 28 U.S.C. § 2255. The district court summarily dismissed the petition, having concluded that Cradle failed to show that his remedy under § 2255 is inadequate or ineffective to test the legality of his detention merely because he may now be time barred from challenging the enhanced penalty through the filing of a § 2255 motion. Additionally, the court determined that Cradle’s claim did not fall within the narrow “savings clause” exception set forth in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the district court’s legal conclusions and apply a clearly erroneous standard to its factual findings. See Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir.1998). Upon review, we conclude that the district court properly dismissed the underlying § 2241 petition through which Cradle sought to challenge his sentence. Cradle argues that a challenge to the district court’s jurisdiction can be raised “any place and at any time,” see Petition for Writ of Habeas Corpus at 9, and since he is procedurally precluded from proceeding under § 2255, he must be afforded an opportunity to attack his sentence through a § 2241 petition. However, under the explicit terms of 28 U.S.C. § 2255, unless a § 2255 motion would be “inadequate or ineffective,” a habeas corpus petition under § 2241 cannot be entertained by the court. See also Application of Galante, 437 F.2d 1164, 1165 (3d Cir.1971). A § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim. Id. (quoting United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir.1954)); see also In re Dorsainvil, 119 F.3d at 249-52. It is the inefficacy of the remedy, not the personal inability to use it, that is determinative. Garris v." }, { "docid": "9698079", "title": "", "text": "petition, he stands convicted of bankruptcy fraud, mail fraud, tax evasion, subscribing to a false tax return, aiding presentation of a false tax return, and introduction of an unapproved drug. The United States Court of Appeals for the Eleventh Circuit affirmed the convictions and sentence on direct appeal in 1998, and the trial court denied Mallard’s 28 U.S.C. § 2255 motion to set aside, vacate, or correct sentence in 2000. United States v. Mallard, No. CIV. 99-0998AHS, GRIM. 9500193AH, 2000 WL 360237 (S.D.Ala. Mar.27, 2000). In the present case, the district court dismissed Mallard’s § 2241 petition summarily. The court held that it lacked jurisdiction over Mallard’s challenge to his conviction and sentence because Mallard had not shown that his remedy under § 2255 was inadequate or ineffective. On appeal, Mallard argues that his petition was brought properly under § 2241. Upon review, we affirm the district court’s judgment for the reasons stated by the district court. This court reviews de novo a district court’s judgment dismissing a habeas corpus petition. Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999). A federal prisoner may challenge his conviction and the imposition of a sentence under § 2241, instead of § 2255, only if he is able to establish that his remedy under § 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. § 2255 (last clause in fifth paragraph); Charles, 180 F.3d at 755-56. To date, the savings clause of § 2255 has only been applied to claims of actual innocence based upon Supreme Court decisions announcing new rules of statutory construction unavailable for attack under § 2255. Martin v. Perez, 319 F.3d 799, 804-05 (6th Cir. 2003). Mallard’s claims are not cognizable under § 2241. Mallard attacked the evidence against him, the statute of limitations, the composition of the jury, and the effectiveness of his attorney. These are all issues that could have been raised on direct appeal or in Mallard’s § 2255 motion. The remedy under § 2255 is not rendered inadequate or ineffective simply because the petitioner has already been denied relief" }, { "docid": "21981091", "title": "", "text": "guideline as the form of credit card fraud practiced by Pizarro himself in his role in the conspiracy (using forged credit cards to purchase goods). Such theft involves no physical taking and no appreciable risk of escalating to violence. We do not know for certain what the AUSA was referring to at the sentencing hearing, and therefore under the circumstances we do not know whether the district court erred when it applied the enhancement. We are therefore in no position to engage in plain error review (which, of course, would be all Pizarro is entitled to, since he failed to raise this objection below). Although counsel for Pizarro may have an explanation for having not pursued the objection below, this may well afford some basis for an ineffective assistance of counsel claim, given a plain reading of the guideline commentary and the apparent lack of evidence that any credit cards were physically stolen. But of course this is a matter that must be raised by a § 2255 attack on competence of counsel, see 28 U.S.C. § 2255, and a matter we are not in a position to address, except to say that, although we take no view on whether ineffective assistance occurred here, it is promising enough that if a habeas petition is filed, the court should consider appointing counsel for Pizarro. C. Concurrent vs. Consecutive Sentences As we have already noted, in its oral pronouncement of Pizarro’s sentence, the district court stated that Pizarro’s federal prison term would run concurrently with the sentence he was serving for state convictions. Nevertheless, the written judgment said that the sentences would run consecutively. The government concedes that the case should be remanded so that the written judgment can be modified to agree with what the district court stated at the sentencing hearing. See United States v. Muñiz, 49 F.3d 36, 42 n. 5 (1st Cir.1995) (“Where, as in this case, the district court’s oral expression of its sentencing rationale varies materially from its subsequent written expression of that rationale, appellate courts have tended to honor the former at the expense of" }, { "docid": "22063900", "title": "", "text": "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 the legality of his detention. 28 U.S.C. § 2255. Thus, the issue before this court is whether § 2255 was inadequate or ineffective to test the legality of Hill’s conviction. If § 2255 was adequate or effective, then the district court properly concluded that it lacked jurisdiction to entertain Hill’s § 2241 claims. We believe § 2255 was adequate and effective in this case, as Hill has provided no credible evidence to the contrary. The prisoner has the burden of demonstrating § 2255 relief in the sentencing court would be unavailable or ineffective. DeSimone, 805 F.2d at 323 (quoting Von Ludwitz v. Ralston, 716 F.2d 528, 529 (8th Cir.1983) (per curiam)). Significantly, in order to establish a remedy is “inadequate or ineffective” under § 2255, there must be more than a procedural barrier to bringing a § 2255 petition. This court has held a § 2255 motion is not “inadequate or ineffective” merely because: (1) “ § 2255 relief has already been denied,” (2) “[the] petitioner has been denied permission to file a second or" }, { "docid": "13119448", "title": "", "text": "in an unpublished opinion filed December 6, 2001. A year later, in December 2002, Adams filed the instant petition in the Eastern District of New York. The petition, brought pursuant to 28 U.S.C. § 2241, raised the same alleged jurisdictional defect that petitioner had urged twice before. Adams candidly admitted that on two prior occasions he had raised the same issue. Judge Amon ruled that § 2255 is the proper vehicle for a prisoner to challenge his sentence, unless § 2255 would be an inadequate or ineffective remedy. Finding that § 2255 was neither inadequate nor ineffective in this case, the district court dismissed Adams’ petition. From the dismissal of his petition, Adams appeals. DISCUSSION A. When reviewing a district court’s dismissal of a § 2241 petition, we examine both the merits of the petition and questions concerning subject matter jurisdiction de novo. Wang v. Ashcroft, 320 F.3d 130, 139-40 (2d Cir.2003). Title 28 U.S.C. §§ 2241 and 2255 each create mechanisms for a federal prisoner to challenge his detention, but the two sections offer relief for different kinds of perceived wrongs. Section 2255 provides relief in cases where the sentence: (1) was imposed in violation of the U.S. Constitution or the laws of the United States; or (2) was entered by a court without jurisdiction to impose the sentence; or (3) exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255. We have held that § 2255 is the appropriate vehicle for a federal prisoner to challenge the imposition of his sentence. See Chambers v. United States, 106 F.3d 472, 474 (2d Cir.1997). Section 2241 by contrast is the proper means to challenge the execution of a sentence. In a § 2241 petition a prisoner may seek relief from such things as, for example, the administration of his parole, computation of his sentence by parole officials, disciplinary actions taken against him, the type of detention, and prison conditions in the facility where he is incarcerated. See Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir.2001). In addition, § 2241(c)(3)" }, { "docid": "22975523", "title": "", "text": "later than 30 days after the filing of the motion”). We also stated that this opinion would follow. This opinion considers whether § 2255 may be deemed to offer an “inadequate or ineffective” remedy within the meaning of 28 U.S.C. § 2255, ¶ 5, thereby allowing a federal prisoner to file a habeas corpus petition pursuant to 28 U.S.C. § 2241(e)(3), where a prisoner who had a prior § 2255 motion dismissed on the merits and cannot meet the AEDPA’s gate-keeping requirements seeks to raise a claim that was available in a prior § 2255 motion. We conclude that § 2255 cannot be deemed inadequate or ineffective under such circumstances. We further hold that when a federal prisoner who has already had a § 2255 motion dismissed on the merits attempts to use § 2241 to raise claims that could have been raised in a prior § 2255 motion, district courts should construe the petition as a second or successive § 2255 motion and transfer it to this Court for certification. Finally, we hold that authorization to file a second or successive § 2255 motion is not available under the circumstances presented in Jiminian’s application. BACKGROUND In June 2000, prior to filing the present application, Jiminian filed a § 2241 petition for habeas corpus in the United States District Court for the Northern District of New York challenging his sentence of 293 months’ imprisonment for his 1990 conviction for various drug offenses. Jiminian argued in that petition that his sentence was imposed in violation of 18 U.S.C. § 3553(c)(1) because the court failed to state, on the record, the reasons for imposing a sentence at the high end of the applicable United States Sentencing Guidelines (“Guidelines”) range. The court transferred the petition to the Unit ed States District Court for the Southern District of New York (Mukasey, C.J.) which, for reasons that Jiminian disputes, construed the petition' as a second or successive § 2255 motion. Pursuant to the procedure set forth in Liriano v. United States, 95 F.3d 119 (2d Cir.1996), the district court transferred the petition to this Court" }, { "docid": "16201680", "title": "", "text": "any plea agreement in therecord, and the court therefore overruled this count of error in the appeal. The Ohio Supreme Court sua sponte dismissed Warner’s appeal. Warner next filed a state habeas corpus petition pursuant to Ohio Rev.Code § 2953.-21, alleging that it was improper to impose consecutive sentences when he was promised concurrent sentences, and for the first time, that his trial counsel was ineffective. The Common Pleas Court denied the petition because Warner could have raised the ineffective assistance of trial counsel claim on direct appeal. Warner appealed to the Ohio Court of Appeals, which affirmed the lower court’s decision 1990 WL 32588. The court held that “direct appeal was the appropriate time to raise these allegations of ineffective assistance.” See State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). The Ohio Supreme Court dismissed Warner’s appeal on June . 27, 1990. B. Federal Court Proceedings While seeking relief from his state court sentence, Warner also filed a federal habe-as corpus petition pursuant to 28 U.S.C. § 2255, challenging his federal sentence. In. his section 2255 petition, Warner made three claims: (1) the United States Attorney breached the plea agreement by not recommending that the federal sentence be imposed concurrently; (2) his counsel provided ineffective assistance of counsel to Warner by counseling him to answer “no” to the court’s inquiries about any promises made to induce the guilty plea; and (3) the guilty plea, induced by his erroneous belief in a promise of a concurrent sentence, was not made knowingly and voluntarily. The district court rejected the first claim, noting that the record revealed no such promise of concurrent sentences by the federal prosecutor but instead reflected Warner and his counsel’s knowledge that the sentences were to be consecutive. With respect to the ineffective assistance of counsel claim, the district court decided that Warner was estopped from asserting his claim because of his answers at the federal sentencing hearing, stating that no promises had been made inducing him to plead guilty. Finally, the court concluded that Warner was collaterally estopped from bringing his claim that his" }, { "docid": "13119447", "title": "", "text": "The state action was dismissed on May 17. Adams believed the pendency of the state criminal proceeding against him during the early stages of his federal prosecution deprived the federal court of jurisdiction and rendered the federal judgment void. On October 10, 2000, we denied Adams’ application to file a second petition under § 2255. In April 2001 petitioner then filed a petition pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Colorado, the district in which Adams was incarcerated at the time. The petition challenged his 1995 conviction on the same jurisdictional ground he had previously sought to raise. The district court ruled that the petition should have been brought under § 2255 because § 2241 attacks the execution of a sentence rather than its validity. It further held Adams failed to establish that a remedy under § 2255 would be inadequate or ineffective to test the legality of his detention simply because he had been denied relief previously, and denied the petition. The Tenth Circuit affirmed in an unpublished opinion filed December 6, 2001. A year later, in December 2002, Adams filed the instant petition in the Eastern District of New York. The petition, brought pursuant to 28 U.S.C. § 2241, raised the same alleged jurisdictional defect that petitioner had urged twice before. Adams candidly admitted that on two prior occasions he had raised the same issue. Judge Amon ruled that § 2255 is the proper vehicle for a prisoner to challenge his sentence, unless § 2255 would be an inadequate or ineffective remedy. Finding that § 2255 was neither inadequate nor ineffective in this case, the district court dismissed Adams’ petition. From the dismissal of his petition, Adams appeals. DISCUSSION A. When reviewing a district court’s dismissal of a § 2241 petition, we examine both the merits of the petition and questions concerning subject matter jurisdiction de novo. Wang v. Ashcroft, 320 F.3d 130, 139-40 (2d Cir.2003). Title 28 U.S.C. §§ 2241 and 2255 each create mechanisms for a federal prisoner to challenge his detention, but the two sections offer" }, { "docid": "22063897", "title": "", "text": "He received a two-level enhancement to his sentence for possession of a firearm. On direct appeal, the Tenth Circuit affirmed Hill’s conviction, concluding sufficient evidence supported the two-level firearm enhancement. United States v. Hill, 129 F.3d 131, 1997 WL 687734, at *3 (10th Cir.1997) (unpublished table decision). On July 27, 1998, Hill filed a motion in the Western District of Oklahoma to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging five instances of ineffective assistance of counsel. See United States v. Hill, 208 F.3d 227, 2000 WL 289622 at *1 (10th Cir.2000) (unpublished table decision). The court denied the motion, and on appeal the Tenth Circuit declined to address Hill’s argument regarding the “dismissed state charge” because he failed to raise the issue before the district court. Id. In December 2000, Hill filed a second § 2255 motion in the Western District of Oklahoma, wherein he apparently argued his sentence should be reduced because the trial court considered drugs he possessed for personal consumption, rather than for distribution, for sentencing purposes. Before a 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" }, { "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": "22546070", "title": "", "text": "either through state proceedings or a federal habeas challenge to those convictions themselves, and then moving to vacate his federal sentence pursuant to section 2255. The Sixth Circuit denied Pack’s motion for a certificate of appealability (COA) of the denial of his section 2255 motion. Thereafter, on July 27, 1998, Pack filed in the Southern District of Mississippi the instant habeas corpus motion pursuant to 28 U.S.C. § 2241, in which he alleged-again-that his current federal sentence under the ACCA had been enhanced on the basis of his allegedly unconstitutional 1979 and 1982 state convictions. As he had in his section 2255 motion, Pack claimed that numerous flaws in the proceedings leading up the 1979 and 1982 convictions rendered those convictions constitutionally invalid; these alleged flaws included ineffective assistance of counsel, the state court’s failure to conduct a proper colloquy prior to his pleading guilty, and his failure actually to enter a guilty plea in his 1979 conviction. On March 12, 1999, the district court dismissed Pack’s petition for lack of jurisdiction. The district court 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," }, { "docid": "20455190", "title": "", "text": "§ 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 and rejected by the sentencing court does not provide the necessary showing that § 2255 was inadequate or ineffective.” Id. Here, Lopez-Lopez merely cites a procedural barrier to relief, the failure by the sentencing court to address his claim on the merits. This, however, does not allow a petition under § 2241. See United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir.2000) (reasoning that a procedural bar to § 2255 relief does not alone render the remedy inadequate or ineffective). Lopez-Lopez next argues that the inadequate performance of his habeas counsel entitles him to pursue relief under § 2241. His argument is without merit. There is no constitutional right to effective assistance of counsel in habeas proceed-' ings. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Abdullah, 392 F.3d at 964. The district court correctly ruled that Lopez-Lopez’s allegation of ineffective post-conviction counsel is insufficient to establish § 2255 relief as inadequate or ineffective. The judgment of the district court is affirmed. . The Honorable Susan Webber" }, { "docid": "16955429", "title": "", "text": "were charged in a four count indictment. Counts I and II charged Osseiran and Haloui with attempt (Count I) and conspiracy (Count II) to possess with intent to distribute more than five kilograms of cocaine and more than one kilogram of heroih. Counts III and IV charged Fisher with attempt (Count III) and conspiracy (Count IV) to possess with intent to distribute more than five kilograms of cocaine. Due to his post-arrest confessions and the constitutional concerns raised thereby, Haloui was tried separately. See Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968). On June 1, 1990, Haloui was acquitted and ordered to remain in the jurisdiction as a material witness for the upcoming trial of Osseiran and Fisher. On October 10, 1990, the thirteenth day of Osseiran’s and Fisher’s trial, Osseiran pleaded guilty. On October 16, 1991, the jury found Fisher guilty on Counts III and IV. Subsequently, Fisher dismissed his trial counsel and hired the attorney now representing him on appeal. Fisher’s new counsel promptly filed a variety of motions attacking the verdict, each of which the district court denied. Upon resolution of these motions, Fisher was sentenced to two concurrent ten year prison terms. On June 3, 1991, Fisher, claiming ineffective assistance of trial counsel, filed a petition for habeas corpus with the district court pursuant to 28 U.S.C. § 2255. As the basis therefor, Fisher complained of trial counsel’s failure to raise seven separate issues. At the same time, Fisher filed a motion in this court seeking a stay of his previously-filed direct appeal. We granted the stay pending the district court’s resolution of the § 2266 petition. In a comprehensive memorandum and order dated July 16, 1992, the district court considered and rejected Fisher’s ineffective assistance arguments on all grounds asserted. See United States v. Osseiran, 798 F.Supp. 861, 873-76 (D.Mass.1992). First, the court determined that the motions Fisher claimed should have been made would not have been granted. Id. at 873-76. Relying on this determination, the court then decided that Fisher had suffered no prejudice and that" } ]

[ { "docid": "14332775", "title": "", "text": "and the circumstances of the case.” The above conclusions, as applicable to the facts before us, we consider to be supported by Empire State Type Founding Co. v. Grant, 114 N. Y. 40, 43, 21 N. E. 40; Sprague Canning Machinery Co. v. Fuller, 158 Fed. 588, 86 C. C. A. 46, 20 Am. Bankr. Rep, 157; In re Pittsburgh Industrial Iron Works (D. C.) 179 Fed. 151, 25 Am. Bankr. Rep. 221, 225. The referee has found upon entirely satisfactory evidence that there was no waiver here. It has previously been said that when the bankrupt drew his check for the purchase price of the bond his account was largely overdrawn, and the bank dishonored the check upon a demand for its certification or payment. The claimant, therefore, never received that which, as a condition precedent to the passing of title to the bond, the bankrupt had agreed to give him; and taking a check of the buyer does not ordinarily operate as payment, to prevent the seller from retaking the goods if the check is not paid. Nat. Bank v. Railroad Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566. So as to the buyer’s note. Davison v. Davis, 125 U. S. 90, 8 Sup. Ct. 825, 31 L. Ed. 635. Where such prepayment is the express condition of tire sale, there is no doubt that the vendor could retake the goods from the vendee, if the condition is not performed. Barrett v. Pritchard, 2 Pick. (Mass.) 512, 13 Am. Dec. 449. The order appealed from is affirmed." } ]

[ { "docid": "1177379", "title": "", "text": "page 523-44 of the same volume, the author says: If the property (or services) was obtained prior to the making of any false representation, subsequent misrepresentations will have no effect upon the discharge of the debt. The case of In Re Eason, supra, is strikingly similar to the case at bar. There, bankrupt was indebted to Montgomery Ward (Wards). He ordered additional merchandise. Wards refused to ship the merchandise until the past due account was paid. Bankrupt issued his check for the past due account, knowing at the time he did not have sufficient funds in his account to cover the check. Upon receipt of the check, Wards shipped the merchandise ordered. The check was returned for insufficient funds. In the bankruptcy proceedings Wards unsuccessfully sought to bar the discharge as to its debt. There, Wards parted with the shipment of merchandise upon the giving of the check. Here, Fleming parted with nothing of value. Preston neither obtained money, property, services, nor an extension, renewal or refinance of credit. Fleming made no change in his position. The giving and acceptance of the check was not payment of the debt evidenced by the note, not even if the note was stamped paid and cancelled, as a “check is not payment until the check is paid.” Federal Reserve Bank of Richmond v. Peters, 139 Va. 45, 123 S.E. 379, 386 (1924), for “it is well settled that, in the absence of special agreement to that effect, acceptance of a check does not operate as payment of a debt, unless the check is itself paid.” Cleve v. Craven Chemical Co., 18 F.2d 711, 712, (4th Cir.1927). See cases cited in Cleve; Jefferson Standard Life Insurance Co. v. Wisdom, 58 F.2d 565 (5th Cir.1932); State v. Stout, 142 W.Va. 182, 95 S.E.2d 639 (1956). In the last cited case the Court says that it is only when the giver of a worthless check obtains additional credit by reason thereof and purchases goods as a result thereof that he obtains something of value. The rights between the parties remained the same after the check was" }, { "docid": "13277236", "title": "", "text": "64; Inter State Bank v. Ringo, 72 Kan. 116, 83 P. 119, 3 L. R. A. (N. S.) 1179, 115 Am St. Rep. 176; Little v. Mangum, supra. It is clear, therefore, that the acceptance of the cheek by the Chemical Company did not extinguish the debt of Cleve & White, unless the cheek itself has been paid. Whether the check has been paid or not depends upon whether or not acceptance by the Reserve Bank of the exchange draft on the reserve deposits of the drawee Bank of Vanceboro operated as payment of the, cheek. Undoubtedly the general rule is that acceptance of such draft operates as payment of the check and discharges the drawer of the check from further liability. Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 68 L. Ed. 617, 31 A. L. R. 1261; Id. (C. C. A. 4th) 291 F. 763; Id. (D C.) 281 F. 997, and cases cited. The reason of the rule is that a cheek is payable only in cash, and if the holder accepts something other than cash he assumes the risk incident thereto, and is estopped to deny payment as against the drawer. As said in Anderson v. Gill, 79 Md. 312, 317, 29 A. 527, 25 L. R. A. 200, 47 Am. St. Rep. 402, and quoted with approval by the Supreme Court in Bank v. Malloy, supra: “Now a cheek on a bank or banker is payable in money, and in nothing else. Morse, Banks and Banking (2d Ed.) p. 268. The drawer, having funds to his credit with the drawee, has a right to assume that the payee will, upon presentation, exact in payment precisely what the cheek was given for, and that he will not accept, in lieu thereof, something for which it had not been drawn. It is certainly not within his contemplation that the payee should, upon presentation, instead of requiring the cash to be paid, accept at the drawer’s risk a cheek of the drawee upon some other bank or banker. The holder had a right" }, { "docid": "22563508", "title": "", "text": "the specified time, will operate as a payment as of the date when given. [Emphasis added.] [40 Am. Juris. 775.] In Estate of M. A. Bradley, supra, p. 51, the Board of Tax Appeals said: At the- least, the payment * * * was a conditional one. * * * The check was duly paid. Under well established law the payment of the check * * * related hack to the date of its delivery and the debt is deemed to be discharged from that date. 21 R. C. L. 70; Hooker v. Burr, 137 Cal. 663; McFadden v. Follrath (Minn.), 130 N. W. 542. [Emphasis added.] On review (Commissioner v. Bradley (C. C. A., 6th Cir.), 56 Fed. (2d) 728, 729), the opinion notes: * * * When, therefore, the check was paid promptly on such presentation, the condition to which this payment was subject was performed, and what had been, at the time of the acceptance of the check, a conditional payment by the deceased, became an absolute payment by him as of that time. [Emphasis added.] In Mark D. Eagleton, 35 B. T. A. 551, 558; affd. (C. C. A., 8th Cir.), 97 Fed. (2d) 62, the rule is stated to be: Payment by check is a conditional payment subject to the condition subsequent that the check is paid on presentation thereof to the drawee. When this method of payment is carried through to the performance of the condition subsequent, it is reasonable to conclude that the payment dates back to the time of giving the check, and it has been held accordingly. * * * As recently as Estate of James W. Hubbell, 10 T. C. 1207, this language from the Eagleton case was quoted with approval. Similarly, in Thomas v. Prudential Insurance Co. of America (C. C. A., 4th Cir.), 104 Fed. (2d) 480, the court stated : * * * In Kendrick v. Insurance Co., 124 N. C. 315, 32 S. E. 728, 70 Am. St Rep. 592, it was held that a check mailed a few hours before the insured died constituted payment" }, { "docid": "8463982", "title": "", "text": "be sought at law or may be had in equity.” Again, the Supreme Court in Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832, held that a federal court has no jurisdiction to modify or reverse a state court decision in diversity of citizenship cases but must follow the decisions of the state court. Where personal property is sold for cash on delivery and the purchaser pays by check on his bank, such payment is conditional, and the delivery of the property likewise is conditional; and, if the check on due presentation, is dishonored, the purchaser does not obtain title and the vendor may retake the property. A check is not payment when it is tendered by a debtor on his bank; it is a method of transferring the money from the debtor to the creditor. The delivery of the check and the acceptance of it are purely conditional acts, and if the check is dishonored, there is no accord and satisfaction of the debt. There is no presumption that a creditor takes a check in payment arising from the mere fact that he accepts it from his debtor. The presumption is to the contrary. Indeed, the delivery of a check to seller by purchaser is a representation that it is good and will be paid on presentation. These principles have been thoroughly established in both Iowa and Minnesota: Mulroney Mfg. Co. v. Weeks, et al., 185 Iowa 714, 171 N.W. 36; Crescent Chevrolet Co. v. Lewis et al., 230 Iowa 1074, 300 N.W. 260; Gray Bros. v. Otto, 178 Iowa 854, 160 N.W. 293; Gustafson v. Equitable Loan Ass’n, 186 Minn. 236, 243 N.W. 106; Schnirring v. Stubbe et al., 177 Minn. 441, 225 N.W. 389; J. I. Case Threshing Machine Co. v. Bargabos, 143 Minn. 8, 172 N.W. 882; National Bank of Commerce v. Chicago B. & N. R. Co., 44 Minn. 224, 46 N.W. 342, 9 L.R.A. 263. It next becomes necessary to examine the laws pertaining to market agencies of Iowa, the state in which the plaintiffs delivered the cattle to Brackey and" }, { "docid": "13277234", "title": "", "text": "Reserve Bank to recover damages for alleged negligence in handling the cheek. The trial judge directed a verdict in favor of the Chemical Company as against Cleve & White, but against the Chemical Company and in favor of the Reserve Bank on the cause of action asserted against it. Two writs of error have been prosecuted to this court, one by Cleve & White to review the judgment rendered against them in favor of the Chemical Company, and the other by the Chemical Company to review the judgment discharging the bank. On each writ of error the principal ground of complaint is the direction of the verdict, and the points raised by the exceptions thereto are the only ones which need be considered. Those relating to evidence are immaterial, as the verdict should have been directed as it was, whether the evidence which is the subject thereof be considered as'admitted or excluded. On the case presented by Cleve & White, the question which arises is whether payment of their debt has been effected, because the Chemical Company accepted their check, or because the Federal Reserve Bank, acting for the Chemical Company in the collection of the cheek, accepted from the drawee of the cheek a draft on its reserve deposits in the First National Bank of New Bern. As to the first proposition, it is well settled that, in the absence of special agreement to that effect, acceptance of a check does not operate as payment of a debt, unless the cheek is itself paid. Little v. Mangum (C. C. A. 4th) 17 F.(2d) 44; decided January 11, 1927; Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Hayworth v. Philadelphia Life Ins. Co., 190 N. C. 757, 130 S. E. 612. And an agreement that a cheek is to be received in absolute payment is not to be implied from the fact that, upon its receipt evidences of debt are marked paid and surrendered or a receipt is given. 2 Morse on Banks and Banking (5th Ed.) § 544 ; 21 R. C. L. p." }, { "docid": "13277235", "title": "", "text": "Chemical Company accepted their check, or because the Federal Reserve Bank, acting for the Chemical Company in the collection of the cheek, accepted from the drawee of the cheek a draft on its reserve deposits in the First National Bank of New Bern. As to the first proposition, it is well settled that, in the absence of special agreement to that effect, acceptance of a check does not operate as payment of a debt, unless the cheek is itself paid. Little v. Mangum (C. C. A. 4th) 17 F.(2d) 44; decided January 11, 1927; Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Hayworth v. Philadelphia Life Ins. Co., 190 N. C. 757, 130 S. E. 612. And an agreement that a cheek is to be received in absolute payment is not to be implied from the fact that, upon its receipt evidences of debt are marked paid and surrendered or a receipt is given. 2 Morse on Banks and Banking (5th Ed.) § 544 ; 21 R. C. L. p. 64; Inter State Bank v. Ringo, 72 Kan. 116, 83 P. 119, 3 L. R. A. (N. S.) 1179, 115 Am St. Rep. 176; Little v. Mangum, supra. It is clear, therefore, that the acceptance of the cheek by the Chemical Company did not extinguish the debt of Cleve & White, unless the cheek itself has been paid. Whether the check has been paid or not depends upon whether or not acceptance by the Reserve Bank of the exchange draft on the reserve deposits of the drawee Bank of Vanceboro operated as payment of the, cheek. Undoubtedly the general rule is that acceptance of such draft operates as payment of the check and discharges the drawer of the check from further liability. Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 68 L. Ed. 617, 31 A. L. R. 1261; Id. (C. C. A. 4th) 291 F. 763; Id. (D C.) 281 F. 997, and cases cited. The reason of the rule is that a cheek is payable only in cash," }, { "docid": "12364434", "title": "", "text": "in good faith and without notice. There can be no question, we think, but that the title of the bank was defective. The sale was a cash transaction, in which the passage of title depended upon payment; and it is well settled that, in the absence of special agreement to the contrary, a check is conditional payment only and does not operate to effect payment unless it is itself paid. Cleve v. Craven Chemical Co., supra (C. C. A. 4th) 18 F.(2d) 711, 712, 52 A. L. R. 980; Little v. Mangum (C. C. A. 4th) 17 F.(2d) 44; Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Morris v. Cleve, supra, 197 N. C. 253, 148 S. E. 253, 259; Hayworth v. Philadelphia Life Ins. Co., 190 N. C. 757, 130 S. E. 612, 613. The rule that a check of a debtor is merely conditional payment applies to obligations arising out of immediate transactions, as well as to payment of antecedent debts; and, where there is a sale for cash on delivery, and payment is made by check of the buyer, such check constitutes only conditional payment. Until the check is itself paid, the title, as between the parties, passes only conditionally; and, upon dishonor of the check, the seller may rescind the transaction and reclaim that with which he has parted. See 21 R. C. L. 64; notes to 31 A. L. R. 578 and 54 A. L. R. 526 and cases cited, and particularly In re A. O. Brown & Co. (D. C.) 189 F. 442; Young v. Harris-Cortner Co., 152 Tenn. 15, 268 S. W. 125, 54 A. L. R. 516; Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626; Hodgson v. Barrett, 33 Ohio St. 63, 31 Am. Rep. 527; First Nat. Bank v. Griffin & Griffin, 31 Okl. 382, 120 P. 595, 596, 49 L. R. A. (N. S.) 1020; People’s State Bank v. Brown, 80 Kan. 520, 103 P. 102, 23 L. R. A. (N. S.) 824; Johnson-Brinkman Commission Co. v. Central Bank, 116 Mo. 558," }, { "docid": "12364435", "title": "", "text": "cash on delivery, and payment is made by check of the buyer, such check constitutes only conditional payment. Until the check is itself paid, the title, as between the parties, passes only conditionally; and, upon dishonor of the check, the seller may rescind the transaction and reclaim that with which he has parted. See 21 R. C. L. 64; notes to 31 A. L. R. 578 and 54 A. L. R. 526 and cases cited, and particularly In re A. O. Brown & Co. (D. C.) 189 F. 442; Young v. Harris-Cortner Co., 152 Tenn. 15, 268 S. W. 125, 54 A. L. R. 516; Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626; Hodgson v. Barrett, 33 Ohio St. 63, 31 Am. Rep. 527; First Nat. Bank v. Griffin & Griffin, 31 Okl. 382, 120 P. 595, 596, 49 L. R. A. (N. S.) 1020; People’s State Bank v. Brown, 80 Kan. 520, 103 P. 102, 23 L. R. A. (N. S.) 824; Johnson-Brinkman Commission Co. v. Central Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615; National Bank v. Chicago, B. & N. R. Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566. Cf. Hoven v. Leedham, 153 Minn. 95, 189 N. W. 601, 31 A. L. R. 574. Although, as the above cases show, there is some conflict in the decisions as to the right of the seller of goods, who has received in payment a check which subsequently has been dishonored, to retake them after they have passed into the hands of an innocent purchaser for value, the better rule being that they may not be retaken from such innocent holder, there is no ground for controversy where, as here, the thing sold is a negotiable instrument and the uniform negotiable instruments act is applicable. In such case, if the person to whom transfer has been made is a holder in due course, he holds the instrument free from any defect of title of prior parties'. N. C. Code, §" }, { "docid": "12364432", "title": "", "text": "declared. Blakey v. Brinson, 286 U. S. 254, 52 S. Ct. 516, 76 L. Ed. 1089, 82 A. L. R. 1288; Jennings v. United States F. & G. Co., 294 U. S. 216, 55 S. Ct. 394, 397, 79 L. Ed. 869; Old Company’s Lehigh, Inc., v. Meeker, 294 U. S. 227, 55 S. Ct. 392, 79 L. Ed. 876; Lifsey v. Goodyear Tire & Rubber Co. (C. C. A. 4th) 67 F.(2d) 82, 83; Schumacher v. Harriett (C. C. A. 4th) 52 F. (2d) 817, 82 A. L. R. 1; First Nat. Bank of Ventura v. Williams (D. C.) 15 F.(2d) 585, 589; City Bank of Hopkinsville v. Blackmore (C. C. A. 6th) 75 F. 771. “When it is sought to impress funds in the hands of a receiver with a trust on account of the wrongful conversion of trust property by an individual or corporation to whose rights he has succeeded, it must be shown that the funds in his hands have been directly augmented by the presence of the trust property or its proceeds, so that a court of equity can see with certainty that the trust property is in his hands.” Lifsey v. Goodyear Tire & Rubber Co., supra; Harmer v. Rendleman (C. C. A. 4th) 64 F.(2d) 422, 423; Jennings v. United States F. & G. Co., supra; Swan v. Children’s Home Society of W. Va. (C. C. A. 4th) 67 F.(2d) 84; Edisto Nat. Bank of Orangeburg v. Bryant (C. C. A. 4th) 72 F. (2d) 917; Spradlin v. Royal Mfg. Co. (C. C. A. 4th) 73 F.(2d) 776. We come then to the case as* presented against the town, which holds the bonds under the pledge from the bank; and the position of complainant is that the town has no better right to them than the National Bank of Snow^Iiill had, and that the title of that bank was defective because it gave in payment for them a check which was dishonored. The position of the town is that, as pledgee of the bonds for its deposit, it is a holder for value" }, { "docid": "8095131", "title": "", "text": "N. E. 490), tbe court said: “When a check payable to another person than tbe drawer is presented by tbe drawer to tbe bank for certification, tbe bank knows that it bas not been negotiated, and that it is not presented for payment, but that tbe drawer wishes tbe obligation of tbe bank to pay it to tbe bolder when it is negotiated, in addition to bis own -obligation. But when tbe payee or bolder of a cheek presents it for certification, tbe bank knows that this is done for tbe convenience or security of tbe bolder.” All of tbe decided eases are to tbe same effect. See 5 R. C. L. p. 525, and cases cited; Times Square Auto Co. v. Rutherford National Bank, 77 N. J. Law, 649, 73 A. 479, 134 Am. St. Rep. 811; Sutter v. Security Trust Co. (N. J. Err. & App.) 126 A. 435, 35 A. L. R. 943, and note; First National Bank v. Whitman, 94 U. S. 343, 345, 24 L. Ed. 229; Born v. Indianapolis First Nat. Bank, 123 Ind. 78, 24 N. E. 173, 7 L. R. A. 442, 18 Am. St. Rep. 312; Jersey City First Nat. Bank v. Leach, 52 N. Y. 350, 11 Am. Rep. 708; Cincinnati Oyster, etc. Co. v. Nat. Lafayette Bank, 51 Ohio St. 106, 36 N. E. 833, 46 Am. St. Rep. 560. Upon tbe record before us, there is nothing to take this case out of tbe operation of tbe law as stated in tbe authorities cited. The acceptance of tbe cheek by tbe Tremont Trust Company at tbe request of tbe payee, charging tbe same to tbe account of the drawer and retaining the funds, was equivalent to a redeposit of them by tbe payee. Times Square Auto Co. v. Rutherford Nat. Bank, supra. Tbe debt for which tbe check was given was therefore extinguished, and there could be no recovery, either upon tbe check or upon a count for tbe value of tbe goods. Tbe judgment of the District Court is reversed, with costs to tbe plaintiff in error" }, { "docid": "12364429", "title": "", "text": "than by check in .usual course, which he must have known would not constitute payment unless itself paid. It appears that he withdrew certain county funds from the bank to an amount in excess of $6,000 on the day on which the bonds were pledged to him to secure the deposit of the town. The first question which arises on the appeal is whether the suit is one which can be maintained by complainant, the position of the defendants being that, upon the deposit of the draft with the Fidelity Bank, it became the property of that bank (City of Douglas v. Federal Reserve Bank, 271 U. S. 489, at page 492, 46 S. Ct. 554, 70 L. Ed. 1051), and that, upon the acceptance by that bank of a check in lieu of cash in payment of the draft, the drawer was released from liability thereon (Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 68 L. Ed. 617, 31 A. L. R. 1261). It is unnecessary to discuss whether the Fidelity Bank became the owner of the draft as distinguished from a mere agent for collection, however, or whether the investment company could have opposed successfully the charging back of the draft to its account on the ground that a check had been accepted in payment; for it appears that the investment company has acquiesced in the charging back of the draft, and, even if the ownership of the draft and the bonds attached to it was vested in the Fidelity Bank originally as a result of the deposit, the investment company has unquestionably been subrogated to any rights of that bank with respect to the draft and the bonds. Cleve v. Craven Chemical Co. (C. C. A. 4th) 18 F.(2d) 711, 715, 52 A. L. R. 980; Morris v. Cleve, 197 N. C. 253, 148 S. E. 253, 256. The case is not one to enforce liability for negligence in the performance of a duty owing to the forwarding bank, as in City of Douglas v. Federal Reserve Bank, supra, but to rfeclaim" }, { "docid": "6520824", "title": "", "text": "Co. v. Mayflower Gold Mining Co. (C. C. A. 8th) 173 F. 855, 35 L. R. A. (N. S.) 1; Pflueger v. Lewis Foundry & Machine Co. (C. C. A. 6th) 134 F. 28; Norton on Bills and Notes (3d Ed.) 19; Daniel on Negotiable Instruments (2d Ed.) 557 et seq.; 21 R. C. L. 60, 61. And an agreement that the cheek was to be received in absolute payment is not to be implied from the fact that upon its receipt the note was marked paid and surrendered. Philadelphia Life Ins. Co. v. Hayworth, supra; Interstate Bank v. Ringo, 72 Kan. 116, 83 P. 119, 3 L. R. A. (N. S.) 1179, 115 Am. St. Rep. 176; Kinard v. First Nat. Bank, 125 Ga. 228, 53 S. E. 1018, 114 Am. St. Rep. 201; 21 R. C. L. pp. 64, 65. Whether or not the cheek was accepted by complainant in payment and discharge of the $6,000 note was a question of fact, and we agree with the learned District Judge that the evidence adduced did not support the theory that it was so accepted. The evidence showed, on the contrary, that the notes of March 21, 1912, were executed in renewal of the notes previously given, and that Melton and the other indorsers indorsed them as a continuance of the original obligation. It follows that no part of Melton’s debt to complainant was created after the conveyance to defendant, but that what was done on March 21, 1912, merely continued a liability which had been created prior to the conveyance. Complainant was not a subsequent creditor, therefore, within the meaning of the statute as to any part of his debt against Melton, and is not entitled for that reason to subject defendant’s land to the payment of his debt. It may be well to state that whether complainant was an antecedent or subsequent creditor is of importance, because the case is governed by the law as it existed prior to the 1914 amendment to the recording act (28 St. at Large S. C. p. 482). It would seem" }, { "docid": "12364436", "title": "", "text": "22 S. W. 813, 38 Am. St. Rep. 615; National Bank v. Chicago, B. & N. R. Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566. Cf. Hoven v. Leedham, 153 Minn. 95, 189 N. W. 601, 31 A. L. R. 574. Although, as the above cases show, there is some conflict in the decisions as to the right of the seller of goods, who has received in payment a check which subsequently has been dishonored, to retake them after they have passed into the hands of an innocent purchaser for value, the better rule being that they may not be retaken from such innocent holder, there is no ground for controversy where, as here, the thing sold is a negotiable instrument and the uniform negotiable instruments act is applicable. In such case, if the person to whom transfer has been made is a holder in due course, he holds the instrument free from any defect of title of prior parties'. N. C. Code, § 3038. Every holder is deemed prima facie to be a holder in due course; but, when it is shown that the title of any person who has negotiated the instrument was defective, the burden is upon the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. N. C. Code, § 3040. Here, the title of the bank of Snow Hill was defective because the transaction was for cash and the check which was dishonored constituted, as we have seen, only conditional payment; and the burden rested upon the town to show that it acquired title as a holder in due course. As the bonds were not overdue or dishonored, this burden resolved itself into showing that the town acquired them for good faith and value, and that it had no notice of any defect in the title of the bank. N. C. Code, § 3033. The town has clearly shown that it acquired the bonds for value. It took them as security for" }, { "docid": "6520823", "title": "", "text": "$15,000, his liability was increased by the amount of $6,000, and that to the extent of this $6,000 complainant thus became a creditor of Melton after Melton had executed the conveyance to defendant and before it was recorded. vVe do not think, however, that this is the correct view of these transactions. There was no special agreement that the check should be accepted in absolute payment or discharge of the $6,000 note, and, in the absence of such special agreement, the presumption is that it was accepted on condition that it should itself be paid. In such case, the debt is not discharged until the cheek is paid or accepted at the bank at which it is made payable. Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Bewley-Darst Coal Co. v. Laurens Gin & Fuel Co., 126 S. C. 219, 119 S. E. 589; The Emily Souder, 17 Wall. 666, 21 L. Ed. 683; The Bird of Paradise, 5 Wall. 545, 18 L. Ed. 662; A. Leschen & Sons Rope Co. v. Mayflower Gold Mining Co. (C. C. A. 8th) 173 F. 855, 35 L. R. A. (N. S.) 1; Pflueger v. Lewis Foundry & Machine Co. (C. C. A. 6th) 134 F. 28; Norton on Bills and Notes (3d Ed.) 19; Daniel on Negotiable Instruments (2d Ed.) 557 et seq.; 21 R. C. L. 60, 61. And an agreement that the cheek was to be received in absolute payment is not to be implied from the fact that upon its receipt the note was marked paid and surrendered. Philadelphia Life Ins. Co. v. Hayworth, supra; Interstate Bank v. Ringo, 72 Kan. 116, 83 P. 119, 3 L. R. A. (N. S.) 1179, 115 Am. St. Rep. 176; Kinard v. First Nat. Bank, 125 Ga. 228, 53 S. E. 1018, 114 Am. St. Rep. 201; 21 R. C. L. pp. 64, 65. Whether or not the cheek was accepted by complainant in payment and discharge of the $6,000 note was a question of fact, and we agree with the learned District Judge that the evidence" }, { "docid": "12364430", "title": "", "text": "the Fidelity Bank became the owner of the draft as distinguished from a mere agent for collection, however, or whether the investment company could have opposed successfully the charging back of the draft to its account on the ground that a check had been accepted in payment; for it appears that the investment company has acquiesced in the charging back of the draft, and, even if the ownership of the draft and the bonds attached to it was vested in the Fidelity Bank originally as a result of the deposit, the investment company has unquestionably been subrogated to any rights of that bank with respect to the draft and the bonds. Cleve v. Craven Chemical Co. (C. C. A. 4th) 18 F.(2d) 711, 715, 52 A. L. R. 980; Morris v. Cleve, 197 N. C. 253, 148 S. E. 253, 256. The case is not one to enforce liability for negligence in the performance of a duty owing to the forwarding bank, as in City of Douglas v. Federal Reserve Bank, supra, but to rfeclaim property or establish a trust because of its conversion; and there can be no question but that complainant was subrogated to any rights of the forwarding bank with respect to this property, or that there was an equitable assignment to complainant of such rights when the draft was charged back to it with its consent. We agree with the court below, however, that no ground for relief is shown as against the receiver of the failed bank. The bonds are not in the possession of the receiver and have in no way augmented the assets which have come into his hands. • When received by the bank, they were pledged at once to the town and added nothing to the bank s assets. The case is not different, in this respect, from what it would have been if they had been used to discharge the liability to the town instead of to secure it; and the law is well settled that in the latter case there is no augmentation upon which a trust may be" }, { "docid": "1177380", "title": "", "text": "position. The giving and acceptance of the check was not payment of the debt evidenced by the note, not even if the note was stamped paid and cancelled, as a “check is not payment until the check is paid.” Federal Reserve Bank of Richmond v. Peters, 139 Va. 45, 123 S.E. 379, 386 (1924), for “it is well settled that, in the absence of special agreement to that effect, acceptance of a check does not operate as payment of a debt, unless the check is itself paid.” Cleve v. Craven Chemical Co., 18 F.2d 711, 712, (4th Cir.1927). See cases cited in Cleve; Jefferson Standard Life Insurance Co. v. Wisdom, 58 F.2d 565 (5th Cir.1932); State v. Stout, 142 W.Va. 182, 95 S.E.2d 639 (1956). In the last cited case the Court says that it is only when the giver of a worthless check obtains additional credit by reason thereof and purchases goods as a result thereof that he obtains something of value. The rights between the parties remained the same after the check was dishonored. See 60 Am.Jur.2d, p. 640, Subject Payment, Par. 45. The delivery of a “check is at best of limited functional significance,” and “in the absence of special agreement, a check is but a conditional payment even when it has been delivered to the payee.” United States v. Forcellati, 610 F.2d 25, 31 (1 Cir.1979), cert. denied, 445 U.S. 944, 100 S.Ct. 1342, 63 L.Ed.2d 778 [cases cited omitted]. It may not be implied that a check is received in absolute payment of a debt “from the fact that upon its receipt evidences of debt are marked paid and surrendered or a receipt is given.” Cleve v. Craven Chemical Co., supra at p. 712. II. Fleming does not bring his claim within the requirements of 11 U.S.C. § 523 so as to bar a discharge of the claim of $9,715.62. The action of the Bankruptcy Court in denying the bar of the claim of Fleming and in granting the discharge of the $6,565.30 note and debt is AFFIRMED. The action of the Bankruptcy Court in" }, { "docid": "13277249", "title": "", "text": "on the theory that there has b,een no payment, as the check has not been paid. It appears without contradiction that, while the cheek was originally credited to the Chemical Company by the Murchison Bank, it was charged back to that company when the exchange draft received in payment was dishonored. Under these circumstances, there can be no question that the right to recover upon the original indebtedness rests with the Chemical Company. Upon the writ of error of the Chemical Company, we are also of opinion that the judgment of the District Court should be affirmed. Assuming, without deciding, that under the special contract, evidenced by the deposit slip, the Chemical Company sustained such a relation to the Federal Reserve Bank as would enable it to maintain the suit for negligence, we are satisfied that the evidence-did not warrant submission of the case to the jury as against the bank, for two reasons : (1) Because there was no evidence of negligence on the part of the bank; and (2) because it does not appear that plaintiff has sustained any injury as the result of the failure of the bank to collect the cheek. For reasons fully discussed in connection with the writ of error of Cleve & White, this case is distinguishable from the case of Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 68 L. Ed. 617, 31 A. L. R. 1261, in that, since the transactions there involved, chapter 20 of the Public Laws of 1921 has been enacted, and the Federal Reserve Bank is not now chargeable with negligence in accepting an exchange draft in payment of a cheek which it holds for collection. Plaintiff contends, however, that the bank was guilty of negligence in not requiring in payment- a check bearing the “I. C.” (immediate credit) symbol. In explanation' of this contention, it should be said that, when the bank in which reserve deposits of a remitting bank are kept itself keeps a certain required balance with the Federal Reserve Bank, it is authorized to allow the remitting bank" }, { "docid": "6520822", "title": "", "text": "of such record, operate as notice to all who may subsequently thereto become creditors or purchasers.” If, therefore, complainant can be considered a subsequent creditor of Melton as to any part of the judgment debt, he is entitled to that extent to subject the land embraced in the unrecorded conveyance to the satisfaction of his judgment. Brown v. Sartor, 87 S. C. 116, 69 S. E. 88; Blackwell v. Harrelson, 99 S. C. 264, 84 S. E. 233, Ann. Cas. 1916E, 1263. If, on the other hand, he is merely an antecedent creditor, he cannot subject the land to his judgment. Complainant bases his contention that he is a subsequent creditor upon the transactions in connection with the $6,000 check. He admits that Melton was indebted to him for the full amount of the $15,000 prior to the sending of that check, but contends that the check was accepted, and that its acceptance released Melton from liability, to the extent of $6,000. He contends from this that, when Melton subsequently indorsed the new notes for $15,000, his liability was increased by the amount of $6,000, and that to the extent of this $6,000 complainant thus became a creditor of Melton after Melton had executed the conveyance to defendant and before it was recorded. vVe do not think, however, that this is the correct view of these transactions. There was no special agreement that the check should be accepted in absolute payment or discharge of the $6,000 note, and, in the absence of such special agreement, the presumption is that it was accepted on condition that it should itself be paid. In such case, the debt is not discharged until the cheek is paid or accepted at the bank at which it is made payable. Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Bewley-Darst Coal Co. v. Laurens Gin & Fuel Co., 126 S. C. 219, 119 S. E. 589; The Emily Souder, 17 Wall. 666, 21 L. Ed. 683; The Bird of Paradise, 5 Wall. 545, 18 L. Ed. 662; A. Leschen & Sons Rope" }, { "docid": "12364433", "title": "", "text": "its proceeds, so that a court of equity can see with certainty that the trust property is in his hands.” Lifsey v. Goodyear Tire & Rubber Co., supra; Harmer v. Rendleman (C. C. A. 4th) 64 F.(2d) 422, 423; Jennings v. United States F. & G. Co., supra; Swan v. Children’s Home Society of W. Va. (C. C. A. 4th) 67 F.(2d) 84; Edisto Nat. Bank of Orangeburg v. Bryant (C. C. A. 4th) 72 F. (2d) 917; Spradlin v. Royal Mfg. Co. (C. C. A. 4th) 73 F.(2d) 776. We come then to the case as* presented against the town, which holds the bonds under the pledge from the bank; and the position of complainant is that the town has no better right to them than the National Bank of Snow^Iiill had, and that the title of that bank was defective because it gave in payment for them a check which was dishonored. The position of the town is that, as pledgee of the bonds for its deposit, it is a holder for value in good faith and without notice. There can be no question, we think, but that the title of the bank was defective. The sale was a cash transaction, in which the passage of title depended upon payment; and it is well settled that, in the absence of special agreement to the contrary, a check is conditional payment only and does not operate to effect payment unless it is itself paid. Cleve v. Craven Chemical Co., supra (C. C. A. 4th) 18 F.(2d) 711, 712, 52 A. L. R. 980; Little v. Mangum (C. C. A. 4th) 17 F.(2d) 44; Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Morris v. Cleve, supra, 197 N. C. 253, 148 S. E. 253, 259; Hayworth v. Philadelphia Life Ins. Co., 190 N. C. 757, 130 S. E. 612, 613. The rule that a check of a debtor is merely conditional payment applies to obligations arising out of immediate transactions, as well as to payment of antecedent debts; and, where there is a sale for" }, { "docid": "487565", "title": "", "text": "to withdraw a note only upon putting up another of equal value. Under the authorities above cited, the treasurer had a lien upon the notes thus set aside for him, whieh was good, not only as against the bank, but also as against its creditors and all other persons, except bona fide purchasers and such persons as might have acquired rights in or liens upon the notes themselves. But, in addition to the fact that the treasurer had an equitable lien or pledge on the notes which was good in equity against the bank and its receiver and not voidable under Rev. St. § 5242, 12 USCA § 91, because created when there was no suspicion of insolvency, we think that he held them under pledge which was valid at law and not voidable under Rev. St. § 5242, because the delivery, although made when the bank was on the verge of insolvency, must be held to relate back to the original agreement under whieh the notes were segregated. It is true that a pledge is not good at law without delivery; but the doetrine is well established in North Carolina and elsewhere that the delivery need not be contemporaneous with the contract of pledge. If made subsequently, it relates back to the-contract and gives it validity. Garrison v. Vermont Mills, supra; Godwin v. Murchison Nat. Bank, supra; Virginia-Carolina Chemical Co. v. McNair, 139 N. C. 326, 51 S. E. 949; Mills v. Virginia-Carolina Lumber Co. (C. C. A. 4th) 164 F. 168, 21 L. R. A. (N. S.) 901; Tomlinson v. Bank (C. C. A. 4th) 145 F. 824; Parshall v. Eggert, 54 N. Y. 18; Cartwright v. Wilmerding, 24 N. Y. 521, 533, 534; Ackerson v. Babcock, 132 Wash. 435, 232 P. 335; American Pig Iron Co. v. German, 126 Ala. 194, 28 So. 603, 85 Am. St. Rep. 21, 26; Farmers’ Nat. Bank v. Cravens, 93 Okl. 58, 219 P. 138; 21 R. C. L. 644; 31 Cyc. 803; Jones on Pledges, §§ 38 and 39. In the oft-cited ease of Parshall v. Eggert, 54 N. Y." } ]

[ { "docid": "22578723", "title": "", "text": "to suppress wiretap evidence; (2) denying his motion for judgment of acquittal for insufficient evidence; (3) denying his various motions for mistrial; and (4) denying his motion for a new trial. Finally, he contends that cumulative error throughout the proceedings denied him a fair trial. a. The District Court’s Denial of Mr. Frederick’s Motion to Suppress Wiretap Evidence The government’s case against Mr. Frederick (and the others) was based in significant part on evidence derived from the wiretap. Prior to trial, Mr. Frederick moved “for entry of an Order suppressing wiretap evidence, [and] other evidence [derived from the wiretap] under the ‘fruits of the poisonous tree’ doctrine.” As the basis for his motion, Mr. Frederick alleged that “[t]he Government’s Affidavit in support of its Application to wiretap [his] cell phone contained] ... misleading statements made recklessly.” The District Court referred Mr. Frederick’s motion to the Magistrate Judge, who recommended that the motion to suppress be denied because Frederick had not established that the wiretap affidavit would fail for want of probable cause absent the alleged “misleading statements.” The District Court adopted the Magistrate Judge’s report and recommendation without discussion and entered an order denying Mr. Frederick’s motion to suppress. Here, Mr. Frederick reasserts his claim that “the Wiretap Affidavit contained misrepresentations or omissions which required suppression of the wiretap evidence.” Alternatively, Mr. Frederick argues that “at a minimum, [he] should have been afforded a full and fair ... [evidentiary] hearing” on this issue, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). “In reviewing a district court’s ruling on a motion to suppress evidence, we review factual findings for clear error and the court’s application of law to those facts de novo.” United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir.2002). “The facts are construed in the light most favorable to the prevailing party.” Id. “[I]n reviewing a denial of a motion to suppress, we review the entire record, including trial testimony.” United States v. Newsome, 475 F.3d 1221, 1224 (11th Cir.2007). Franks v. Delaware provides, in pertinent part, that where the defendant" } ]

[ { "docid": "18074834", "title": "", "text": "information obtained pursuant to the “illegal detention,” supra at 1015-1017, was placed in the search warrant affidavit. Because it was objectively reasonable for agent Hicks to believe the information he gathered pursuant to the illegal detention and placed in the affidavit was lawfully obtained, he had a good faith belief in the validity of the warrant. I would affirm his conviction. See id. III. For the foregoing reasons, I believe the majority errs in holding that the district court improperly refused to grant Millan’s motion to suppress. . I do not find it necessary to address the merits of Millan’s claim that the evidence seized pursuant to a search of his garment bag should have been excluded. Even if the detention of his bag had been for an unreasonable period of time and the subsequent search unconstitutional, the denial of his motion to suppress the evidence seized from the bag was harmless. United States v. Civella, 666 F.2d 1122, 1130 (8th Cir.1981). First, although the district court mentioned the items seized in the bag in its statement of facts, its finding of guilt was not dependent upon any of these items. The court stated, \"[biased upon the large amont [sic] of cocaine possessed by the defendant, it [sic] very high purity and the interstate transportation of the cocaine the Court finds that defendant possessed that cocaine with the intent to distribute rather than for his own use.” Therefore, because the paper with figures on it and the empty zip-lock bags were not necessary to support this conclusion, the district court’s refusal to exclude them, even if in error, was harmless. Second, the evidence of Millan’s guilt was overwhelming. Therefore, any error which resulted from the district court's refusal to exclude the evidence seized pursuant to a search of his bag did not affect his substantial rights. Millan was found in possession of 500.9 grams of 97% pure cocaine shortly after deplaning from a flight which originated in a source city in another state, he acted suspiciously in the airport and lied to officers about the contents of his jacket pockets." }, { "docid": "13125152", "title": "", "text": "did not err in finding that Contreras voluntarily consented to the search of his residence. Contreras raises the same arguments in support of his motion to suppress incriminating statements he made to law enforcement officers after receiving his Miranda warnings. “We review the district court’s findings of fact for clear error and its legal conclusion as to whether a confession was voluntary de novo.” United States v. LeBrun, 363 F.3d 715, 724 (8th Cir.2004). In making these determinations, we “inquire into the totality of the circumstances in assessing the conduct of law enforcement officials and the suspect’s capacity to resist any pressure.” United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995). See also, United States v. Makes Room, 49 F.3d 410, 414 (8th Cir.1995) (noting that courts apply the same standard to assess the validity of a Miranda waiver and the voluntariness of a statement under the Fifth Amendment). For the reasons set forth above, we affirm the district court’s finding that Contreras made a voluntary waiver. We next consider whether the district court erred in denying Contreras’s request for a downward adjustment for acceptance of responsibility pursuant to § 3E1.1. Because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” we review with “great deference.” U.S.S.G. § 3E1.1, cmt. n. 5. We will reverse only if the district court’s findings are clearly erroneous and completely lack foundation. United States v. Greger, 339 F.3d 666, 672 (8th Cir.2003). Section 3El.l(a) provides for a two-level reduction in a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” The commentary to this guideline further provides: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises" }, { "docid": "20637336", "title": "", "text": "his operations. Therefore, the evidence was sufficient to convict Mr. Banks of carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (1) (A) (i). B. The District Court Did Not Err in Denying Mr. Banks’ Motion to Suppress Evidence Mr. Banks next argues that the expanded authority to search his home on the military base was invalid, and that all evidence seized in connection with that authority to search should have been suppressed. When reviewing the denial of a motion to suppress, this court examines the totality of circumstances and reviews the evidence in the light most favorable to the government. United States v. Gay, 240 F.3d 1222, 1225 (10th Cir.2001). Furthermore, we accept the district court’s factual findings unless they are clearly erroneous. Id. We review de novo a district court’s determination that a search or seizure is in accordance with the law. Id. at 1226. Under Military Rule of Evidence 315, “[a]n ‘authorization to search’ is an express permission, written or oral, issued by a competent military authority to search a person or an area for specified property or evidence or for a specific person and to seize such property evidence or person.” An authority to search must be supported by probable cause, which can be determined on the basis of “[o]ral statements communicated to the authorizing official in person, via telephone, or by other appropriate means of communication.” M.R.E. Rule 315(f)(2)(B). Mr. Banks argues that Agent Hancock was not under oath when he spoke over the phone with Colonel Whitehead regarding the expansion of the authority to search, and this infirmity renders the resulting expanding authority to search invalid. While Mr. Banks did file a motion to suppress this evidence, he never argued that Agent Hancock’s oral statements to Colonel Whitehead were not sworn. In fact, there is no mention of this issue in the record, and, accordingly, it is not clear if Agent Hancock actually had been under oath when he was speaking with Colonel Whitehead. Accordingly, even if we were to assume that Rule 315" }, { "docid": "23477445", "title": "", "text": "foreseeable is a factual finding reviewed for clear error. United States v. Torres-Rodriguez, 930 F.2d 1375, 1389 (9th Cir.1991). In United States v. Diaz Rosas, 13 F.3d 1305, 1308 (9th Cir.1994), we held that: A defendant who is guilty of conspiracy to possess and distribute cocaine may properly be held accountable for any cocaine possessed or distributed by coconspirators, so long as that cocaine was foreseeable to him. It is not necessary that the defendant personally possessed-all of the cocaine for which he is held accountable. Citing U.S.S.G. § 1B1.3; U.S. v. Conkins, 987 F.2d 564 (9th Cir.1993). The same is true for conspiracies involving, marijuana. The record establishes that the district court did not err in its calculation of the base offense levels. IX. MOTIONS TO SUPPRESS EVIDENCE Treiber , Best, and Israel-Treiber each argue that the district court erred when it denied their separate motions to suppress evidence found in three separate searches. We review de novo the district court’s determinations on motions to suppress but we review factual findings for clear error. United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994). A. Treiber Treiber and Bauer challenge the district court’s finding of probable cause, which was based on an affidavit, to search the residence of Treiber’s. brother Todd. The affidavit did not contain the prior criminal record of the source of the information supporting probable cause. The affidavit in support of the warrant did- contain extensive detail concerning the operation and the likely quantity and location of marijuana stored at Todd Treiber’s residence, as well as that expected to be found at other locations contained in the affidavit. The district court did not err in denying the motion to suppress. B. Best The affidavit in support of the search warrant for Best’s residence was based in part on a statement by Edgar Franz who was apprehended shortly after burglarizing Best’s home. The district court found that the affidavit did not contain-false statements. This finding of fact was not clearly erroneous. The affidavit supported a finding of probable cause. C. Israel-Treiber Israel-Treiber argues that the police illegally" }, { "docid": "20464027", "title": "", "text": "597-98 (noting that the only potential federal actions that could activate defendant’s speedy trial rights under the Sixth Amendment after being held in state custody are the serving of the detainer, or the issuance of the federal arrest warrant, complaint, or indictment). Accordingly, because Burgess was indicted before his arrest on the present charges, his allegations regarding the time he spent in state custody do not qualify as “postaccusation delay” with respect to the federal charges at issue here. III. Burgess next argues that the district court erred in failing to suppress certain statements he made to law enforcement officers in March 2008. He asserts that he provided those statements with the understanding that they were protected by “informal use immunity” or “transactional immunity” because, according to Burgess, the custom and practice in the Western District of North Carolina is to grant such immunity to cooperating defendants. When reviewing the district court’s denial of a motion to suppress, we review factual findings for clear error, and issues of law de novo. United States v. Holmes, 670 F.3d 586, 591 (4th Cir.2012). We conclude that the district court did not err in denying Burgess’ motion to suppress. A defendant’s alleged agreement to cooperate with law enforcement authorities in exchange for transactional immunity is governed by traditional principles of contract law, and therefore an agreement of this nature may be express or implied. United States v. McHan, 101 F.3d 1027, 1034 (4th Cir.1996). Irrespective whether the alleged agreement is express or implied, the defendant must establish that a meeting of the minds occurred such that the government agreed to refrain from prosecuting the defendant in return for his cooperation. Id. (holding that the same standard applies with respect to equitable immunity). In this case, Burgess can identify no action or statement on the part of the government sufficient to establish a meeting of the minds regarding immunity for his statements. Burgess was informed of his Miranda rights before every exchange with the authorities, and at no time did a law enforcement agent make any statement or representation concerning immunity. Additionally, the agents’" }, { "docid": "21936507", "title": "", "text": "prison. On appeal, Defendant asserts various evidentiary grounds for vacating his conviction. He also argues that the district court erred by dismissing his former indictment without prejudice, which thereby allowed the Government to re-indict Defendant. Assuming the conviction stands, Defendant argues that his sentence must be vacated under the Supreme Court’s holding in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), that a juvenile cannot be sentenced to life without parole for nonhomicide offenses. Defendant also argues that the sentence was imposed as punishment for his prior appeal, in violation of the Supreme Court’s holding in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). For the reasons discussed below, we affirm both the conviction and. the sentence. DISCUSSION I. Defendant does not assert any valid ground for vacating his conviction. In support of the appeal of his conviction, Defendant argues that the district court erred by (1) denying various motions to suppress evidence, ;(2) admitting improper and prejudicial evidence, and (3) denying Defendant’s motion to dismiss the initial indictment against him with prejudice under the Speedy Trial Act. Defendant also argues that his second indictment violated the applicable statute of limitations. We are not persuáded by any of these arguments. A. The district court did not err in its suppression rulings. In reviewing the district court’s suppression rulings, “we review factual findings for clear error and the court’s application of law to those facts de novo.” United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002). We construe the facts “in the. light most favorable to the prevailing party.” Id. 1. Post-Arrest Statements Defendant argues that his post-arrest statements should have been suppressed because there was no probable cause for his arrest. This argument fails because it is clear that there was, in fact, probable cause for Defendant’s arrest. Pri- or to the arrest, police set up a perimeter outside of a check-cashing store to investigate a report that a robbery had occurred there. An officer working the perimeter stopped and questioned Defendant after observing him emerge.from between" }, { "docid": "23637567", "title": "", "text": "in the PSI.” United States v. Bennett, 472 F.3d 825, 832 (11th Cir.2006) (citing United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.1989)). “It is the law of this circuit that a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes. It is also established law that the failure to object to a district court’s factual findings precludes the argument that there was error in them.” United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.2006) (internal citations omitted). Where statements in a PSI are undisputed, “the court [is] permitted to rely on them despite the absence of supporting evidence.” United States v. Hedges, 175 F.3d 1312, 1315 (11th Cir.1999). We review the district court’s findings of fact for clear error and its application of the Sentencing Guidelines de novo. United States v. Rendon, 354 F.3d 1320, 1329 (11th Cir.2003). None of the district court’s findings of fact was erroneous, much less clearly erroneous; and based on the facts set forth in the PSI, the district court correctly concluded that the conduct on which Lopez-Garcia’s state law firearms conviction was based would have constituted a violation of § 924(c). Lopez-Garcia’s prior conviction meets the definition of “firearms offense” under Guideline § 2L1.2, and the district court did not err in imposing the Guideline’s- sixteen offense-level enhancement. IV. In sum, the district court was correct in denying Lopez-Garcia’s motion to sup press Lopez-Garcia’s statements to Agent Diaz. While we believe that the initial stop of Lopez-Garcia’s car and the ensuing arrest did not violate his Fourth Amendment rights, the district court was nonetheless correct in holding that none of Lopez-Garcia’s subsequent statements to Agent Diaz were tainted under the fruit of the poisonous tree doctrine. Similarly, the documentary evidence regarding Lopez-Garcia’s immigration status — the IAQ and his A-File — were not suppressible. Finally, the district court did not err in enhancing Lopez-Garcia’s sentence based on his prior state court conviction for a firearms offense. AFFIRMED. . An alien file contains information obtained on each occasion that an alien has passed through the" }, { "docid": "22975801", "title": "", "text": "denying Tis-dale’s motion to suppress. Alternatively, the Government contends that the law enforcement officers’ reliance upon Judge Owen’s probable cause determination was objectively reasonable, and thus, the good faith exception applies. Moreover, the Government claims that, as discussed supra, Sergeant Allen’s affidavit is not a “bare bones” application. Finally, the Government argues that it is clear that the Maxima was the subject of the robbery and that any failure by Officer Harris to communicate any information to the other officers was merely inadvertent. In short, the Government asserts that the application for the search warrant contained no intentional or reckless misstatements, nor did it contain any material omissions, and therefore, the district court did not err in denying Tisdale’s motion to suppress. 1. Probable Cause This Court reviews the sufficiency of the affidavit upon which a warrant is issued by looking at the totality of the circumstances and simply ensuring “that the magistrate had a substantial basis for concluding that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)(quotation omitted). Probable cause means that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238, 103 S.Ct. 2317; United States v. McCarty, 82 F.3d 943, 947 (10th Cir.1996). “[T]he defendant bears the burden of ‘proving a factual nexus’ between the Fourth Amendment violation and the seizure of the evidence sought to be suppressed.” United States v. King, 222 F.3d 1280, 1285-86 (10th Cir.2000), quoting United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.2000). “We review de novo the district court’s probable cause determination.” United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir.1999). This Court’s review of the issuance of the search warrant, however, is more deferential. Id. As we have previously explained: When reviewing a district court’s denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in a light most favorable to the government. We accept the district court’s factual findings unless those findings are clearly erroneous. The credibility of witnesses," }, { "docid": "15548872", "title": "", "text": "when Posadas subsequently contacted McNeil and requested that he send $118,000 to Vargas, McNeil declined. A number of defense witnesses corroborated various parts of McNeil’s testimony. Following McNeil’s conviction, the district court denied McNeil’s motion for a new trial. The court sentenced McNeil to the mandatory minimum term of 120 months imprisonment, to be followed by five years of supervised release. The sentence included a 31-month downward departure pursuant to U.S.S.G. § 5K2.0. II. DISCUSSION McNeil contends on appeal that the district court erred when it: (1) denied his motion to suppress evidence; (2) admitted prior bad act evidence; (3) failed to charge the jury on the theory of his defense; and (4) denied his motion for a new trial. A. Motion to suppress McNeil claims that the district court erred in denying his motion to suppress evidence obtained from his Minnesota residence pursuant to a March 25, 1997 search warrant. In the warrant affidavit, an FBI agent stated that a wiretap investigation into the drug trafficking organization of which McNeil was a part began on September 9, 1996. The agent averred that a search of Nunez’s locker on December 5, 1996, turned up 15 pounds of methamphetamine and that, shortly after that search, twelve persons, including Lopez and Posadas, were indicted for federal drug violations. The agent’s affidavit set forth Lopez’s and Posadas’ statements to him regarding McNeil’s October 1996 drug delivery. McNeil asserts that the information contained in the search warrant affidavit was stale and insufficient to establish that contraband or evidence of crime would be found at his residence. McNeil also contends that the search warrant affidavit contained false statements and material omissions and that he was entitled to a Franks hearing to determine the validity of the warrant. 1. Staleness We review de novo the trial court’s ruling on a motion to suppress, “evaluating only for clear error, however, any findings of fact by the trial court and giving appropriate deference to the inferences apparently drawn from those facts by law enforcement officers, the court that issued the search warrants, and the trial court.” United States" }, { "docid": "22083335", "title": "", "text": "party that prevailed” in the district court. Id. “[W]e may affirm the denial of a motion to suppress on any ground supported by the record.” United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir.2010). “The district court’s factual findings are reviewed for clear error, and its application of those facts to justify a sentencing enhancement is reviewed de novo.” United States v. Creel, 783 F.3d 1357, 1359 (11th Cir.2015) (quoting United States v. Spriggs, 666 F.3d 1284, 1286 (11th Cir.2012)) (internal quotation marks omitted). We review constitutional challenges to the sentencing guidelines de novo. United States v. Pressley, 345 F.3d 1205, 1209 (11th Cir.2003). “For a factual finding to be clearly erroneous, this [C]ourt, after reviewing all of the evidence, must be left with a definite and firm conviction that a mistake has been committed.” Creel, 783 F.3d at 1359 (quoting United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.2004)) (alteration in original) (internal quotation marks omitted). We may affirm a sentencing enhancement “for any reason supported by the record, even if not relied upon by the district court.” United States v. Chitwood, 676 F.3d 971, 975 (11th Cir.2012) (quoting United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.2008)) (internal quotation marks omitted). III. DISCUSSION We divide our discussion into two parts. First, we explain that the district court did not err in denying Matchett’s motion to suppress. Next, we explain that advisory guidelines cannot be unconstitutionally vague, and that the district court did not err in applying the two sentencing enhancements, U.S.S.G. §§ 2K2.1(a)(2), 3C1.2. A. The District Court Did Not Err in Denying Matchett’s Motion to Suppress. Matchett argues that Officer Smith stopped and frisked him in violation of the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV. We have identified “three broad categories of police-citizen encounters for purposes of our Fourth Amendment analysis: (1) police-citizen exchanges involving no coercion or detention; (2) brief seizures or investigatory detentions; and (3) full-scale arrests.” United States v." }, { "docid": "22199294", "title": "", "text": "in all of the affidavits): [The law enforcement officers conducting the investigation] have received information from four (4) separate confidential sources (CSs) pertaining to a narcotics smuggling distribution organization .... In addition, the information provided by the CSs has proven reliable in the past.... CSs information has been corroborated by surveillance and police record checks. Cuni asserts that this statement is false because three of the four informants had not cooperated with the police in the past. He argues that the misrepresentation must have been deliberate because the wiretap applications were filed between October 19, 1993 and December 1, 1993, while Agent Lucas testified that two of the informants only began providing information in September and October 1993. Second, Cuni argues that the statement attributed to one of the informants was contradicted by that individual’s testimony at trial. The affidavit stated that the informant had observed Cuni unloading boxes from a van at the Novaton residence under the supervision of a police officer. The informant retreated from that statement during his trial testimony. Third, Agent Lucas’ affidavit, dated November 16, 1993, supporting the application for a wiretap on one of Cuni’s cell phones erroneously represented that Cuni had a prior conviction for cocaine trafficking, although the previous conviction actually related to heroin. Finally, Agent Lucas’ affidavits omitted facts concerning the criminal histories of the informants, including the fact that one of the informants had previously been convicted of lying to a police officer. Based on these alleged misrepresentations or omissions, Cuni argues that the district court erred by not suppressing the wiretap evidence. We review the district court’s findings of fact on a motion to suppress only for clear error, but review its application of law to those facts de novo. United States v. Jackson, 120 F.3d 1226, 1228 (11th Cir.1997). In the present case, the district court’s findings of fact were not clearly erroneous, and the court did not err in denying Cuni’s motions to suppress. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court set out the standards for considering" }, { "docid": "20637339", "title": "", "text": "District Court Did Not Err in Denying Mr. Banks’ Motion to Suppress His Statements Finally, Mr. Banks argues that in-culpatory statements made after his arrest were made involuntarily as a result of coercion. When reviewing the denial of a motion to suppress a statement, we review the evidence in the light most favorable to the government and accept the district court’s factual findings unless they are clearly erroneous. United States v. Toles, 297 F.3d 959 (10th Cir.2002). We review de novo the ultimate issue of the voluntariness of a statement, taking into account the totality of the circumstances surrounding the confession. See United States v. Nguyen, 155 F.3d 1219, 1222 (10th Cir.1998). Mr. Banks first contends that interrogating officers threatened to take his child away from him if he did not cooperate. The District Court, however, found as a matter of fact that no such threat occurred. Because this finding is not clearly erroneous, we do not find merit to Mr. Banks’ first contention. Mr. Banks also argues for the first time on appeal that he understood a statement made to him at his bond hearing to be a military order to cooperate with law enforcement. As noted above, however, specific arguments must be made in a suppression hearing or they will generally not be considered on appeal. See Dewitt, 946 F.2d at 1502. Finding no exceptional circumstances in this case, we decline to address this issue. III. CONCLUSION The Government presented sufficient evidence to convict Mr. Banks of violating 18 U.S.C. § 924(c)(1), and the District Court did not err in denying Mr. Banks’ two motions to suppress evidence and his own statements. We therefore AFFIRM. . To the extent Mr. Banks argues that oral statements of probable cause are unconstitutional, we have previously held \"that under military rules oral affidavits and oral authorization of search warrants without contemporaneous writings are free from constitutional infirmity.” United States v. Brown, 784 F.2d 1033, 1037 (10th Cir. 1986)." }, { "docid": "23030222", "title": "", "text": "at 1106 1/2 Tilghman Street, on the grounds that: (1) the warrant contained stale facts, (2) the warrant failed to list with particularity the items to be seized, and (3) the agents seized items from 1108 Tilghman Street, a location not listed in the warrant. Riddick did not raise the first two claims in his suppression motion and therefore the district court’s denial is reviewed for plain error. See Fed.R.Crim.P. 52(b). Riddick’s first two claims are without merit. The warrant lists the items to be seized with sufficient specificity. Moreover, the information in the warrant was not stale; it showed an entrenched ongoing five-year drug operation in which Riddick frequently used his home to conduct cocaine transactions, and in which the most recent drug sale by one of his employees occurred only six days before the warrant was executed. As for Riddick’s third claim, the court reviews the district court’s denial of the motion to suppress for “clear error as to the underlying facts, but exereise[s] plenary review as to its legality in light of the court’s properly found facts.” United States v. Inigo, 925 F.2d 641, 656 (3d Cir.1991). The district court did not err in denying Riddick’s motion to suppress all evidence seized during an August 12, 1994, search of his residence. Riddick failed to substantiate his claim that Government agents improperly searched an adjoining property. Rather, the suppression hearing testimony showed that the agents confined their search to the premises identified by the street address in the warrant. In addition, Riddick failed to show that the Government used any item seized from that space against him at trial, rendering any error harmless. E. Illegal Monitoring of Conversations Riddick claims that the district court erred in denying his motion to suppress all electronic surveillance on two grounds. We review the district court’s factual findings for clear error and exercise plenary review of the legal issues involved. Inigo, 925 F.2d at 656. First, he argues that the government illegally intercepted his telephone conversation before obtaining a court order on December 10, 1993, authorizing surveillance. Riddick has failed to produce" }, { "docid": "21092000", "title": "", "text": "bank robberies were sufficient to cause a reasonable person to believe that defendants committed the bank robberies. So, we affirm the district court’s finding that the agents had probable cause to arrest defendants after Salathiel Thompson’s statements. See Hastamorir, 881 F.2d at 1557 (affirming finding of probable cause based on evidence found during investigative stop). Defendants Salathiel Thompson, Hinsey, and Blackman additionally contend that the district court should have suppressed their confessions because, after being lawfully arrested, they received no Miranda warnings and because the confessions were coerced. The magistrate judge specifically rejected defendants’ claims. Crediting the agents’ testimony, the magistrate found that all four defendants were fully advised of their Miranda warnings before making the oral statements and signing the written confessions. And, the magistrate rejected defendants’ claims that the statements were coerced. The magistrate specifically found that Salathiel Thompson made his first incul-patory statements during the investigatory stop and before the Bahamian police arrived and found that the FBI agents reassured defendants that they would remain in federal custody and would not be turned over to the Bahamian officials. After de novo review of the record, the district court adopted these findings. When reviewing a ruling on a motion to suppress, we review the district court’s factual findings for clear error and its application of law to the facts de novo. See United States v. Magluta, 44 F.3d 1530, 1536 (11th Cir.1995). The district court’s ultimate conclusion on the voluntariness of a confession, or the waiver of Miranda rights, raises a question of law to be reviewed de novo. Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976); United States v. Parr, 716 F.2d 796, 817-818 (11th Cir.1983). After a review of the record, we agree with the district court that Defendants’ confessions were made knowingly and voluntarily, after Miranda warnings were given. We accept that government agents did not threaten to turn Defendants over to the Bahamian officials, but rather told Defendants that they would be kept in federal custody. The district court did not err in denying the motion" }, { "docid": "22199295", "title": "", "text": "Lucas’ affidavit, dated November 16, 1993, supporting the application for a wiretap on one of Cuni’s cell phones erroneously represented that Cuni had a prior conviction for cocaine trafficking, although the previous conviction actually related to heroin. Finally, Agent Lucas’ affidavits omitted facts concerning the criminal histories of the informants, including the fact that one of the informants had previously been convicted of lying to a police officer. Based on these alleged misrepresentations or omissions, Cuni argues that the district court erred by not suppressing the wiretap evidence. We review the district court’s findings of fact on a motion to suppress only for clear error, but review its application of law to those facts de novo. United States v. Jackson, 120 F.3d 1226, 1228 (11th Cir.1997). In the present case, the district court’s findings of fact were not clearly erroneous, and the court did not err in denying Cuni’s motions to suppress. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court set out the standards for considering an attack on the veracity of an affidavit filed in support of a search warrant. The Court stated that: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affi-ant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject" }, { "docid": "21092001", "title": "", "text": "turned over to the Bahamian officials. After de novo review of the record, the district court adopted these findings. When reviewing a ruling on a motion to suppress, we review the district court’s factual findings for clear error and its application of law to the facts de novo. See United States v. Magluta, 44 F.3d 1530, 1536 (11th Cir.1995). The district court’s ultimate conclusion on the voluntariness of a confession, or the waiver of Miranda rights, raises a question of law to be reviewed de novo. Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976); United States v. Parr, 716 F.2d 796, 817-818 (11th Cir.1983). After a review of the record, we agree with the district court that Defendants’ confessions were made knowingly and voluntarily, after Miranda warnings were given. We accept that government agents did not threaten to turn Defendants over to the Bahamian officials, but rather told Defendants that they would be kept in federal custody. The district court did not err in denying the motion to suppress. III. Sentencing: Defendant Blackman faced a guideline sentence of 562 months to 627 months. At sentencing, his attorney asked the court for a low guideline sentence. The court commented on the fact that defendant Blackman had not “acknowledged some guilt, some fault.” Defendant Blackman began yelling obscenities at the judge and was removed from the courtroom. The judge believed Blackman’s outburst was indicative of his “absolute lack of remorse” and “complete defiance of rules” So, while the other defendants received the lowest possible sentence, the court sentenced Blackman to 627 months, the maximum sentence allowed under the guidelines. Defendant Blackman argues that he must be resentenced because his statements provided no basis for a sentence enhancement. But, the court did not enhance the sentence; Blackman’s sentence falls within the statutorily required range. The sentencing court said that it was imposing the sentence, not to punish Blackman for making the statements, but because Blackman’s statements reflected his lack of remorse and refusal to accept responsibility for his acts. And, U.S.S.G. § 1B1.4 permits a" }, { "docid": "2530693", "title": "", "text": "as to merit suppression. On July 23, 2013, Chief Judge William M. Skretny of the United States District Court for the Western District of New York adopted the Report and Recommendation in full. Chief Judge Skretny emphasized that although the “agents did not intentionally present misleading information ..., their conduct did involve some degree of negligence” counseling against application of the good faith exception. He subsequently denied the government’s motion for reconsideration, clarifying that his earlier order did not supplant Judge Scott’s factual findings, but rather “accepted the Report and Recommendation — and the Magistrate Judge’s findings concerning misleading statements and gross negligence — without modification.” DISCUSSION On appeal from a district court’s ruling on a motion to suppress, we review the court’s factual findings for clear error. United States v. Smith, 9 F.3d 1007, 1011 (2d Cir.1993). We review the court’s legal determinations, including the existence of probable cause and the good faith of officers relying on a search warrant, de novo. Id. The government presses two chief arguments on appeal. First, it argues that the nine-month gap between the IP logs and the warrant application did not render the evidence in Agent Ouzer’s affidavit stale, because persons interested in child pornography are known to hoard digital files for extensive periods of time. Second, it argues that Agent Ouzer was entitled to the good faith exception because the suppression order in Coon did not establish a binding rule of law and because Agent Ouzer’s alleged misstatements did not amount to gross negligence. I. Probable Cause The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const, amend. IV. Probable cause “is a fluid concept” turning “on the assessment of probabilities in particular factual contexts,” and as such is not “readily, or even usefully, reduced to a neat set of legal rules.” United States v. Falso, 544 F.3d 110, 117 (2d Cir.2008), quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In evaluating probable cause in any given case, a judge must “make a practical," }, { "docid": "10123682", "title": "", "text": "after reviewing the report, the magistrate judge concluded that Graf did not make “a substantial preliminary showing that [ ] Gottardi ... or any other law enforcement officer, made untruthful or deliberately misleading statements in the affidavit,” and recommended that the trial judge deny Grafs request for a Franks hearing. The district court judge adopted the magistrate judge’s recommendation, over Grafs objection, also denying Grafs motion to suppress. Graf ended up pleading guilty to possessing an unregistered shotgun and manufacturing marijuana, reserving his right to appeal the denial of his motion to suppress. The district court sentenced him to two years in prison, among other conditions. This timely appeal followed. STANDARDS OF REVIEW “We review the denial of a Franks hearing for clear error.” United States v. Reiner, 500 F.3d 10, 14 (1st Cir.2007) (citation omitted). Clear error “exists only when we are left with the definite and firm conviction that a mistake has been committed.” United States v. Hicks, 575 F.3d 130, 138 (1st Cir.2009) (citation and quotations omitted). “We apply a mixed standard of review to the district court’s denial of a motion to suppress, reviewing findings of fact for clear error and conclusions of law, including whether a particular set of facts constitutes probable cause, de novo.” United States v. Belton, 520 F.3d 80, 82 (1st Cir.2008) (citation omitted). “To prevail, [a defendant] must show that no reasonable view of the evidence supports the denial of the motion to suppress.” Id. (citation omitted). DISCUSSION Grafs main argument on appeal is that the trial court erred by denying him the opportunity to challenge Gottardi’s affidavit at a formal Franks evidentiary hearing, where he would have had been able to cross-examine Gottardi. More specifically, Graf relies on out-of-circuit precedent to argue that “the court should not give the government an opportunity to present its evidence on the validity of the warrant” without holding a “full evidentiary Franks hearing.” Graf also offers the secondary argument that even if the lower court did not procedurally err in hearing, out the government before making its Franks ruling, the particular procedure chosen by" }, { "docid": "23400745", "title": "", "text": "the “necessity requirement.” The judge determines whether the applicant has satisfied the requirements of section 2518(l)(c). United States v. Torres, 908 F.2d 1417, 1422 (9th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 228 and cert. denied, 498 U.S. 948, 111 S.Ct. 366, 112 L.Ed.2d 329 (1990). Khan contends that the government bypassed other reasonable investigative techniques that could have been employed in lieu of the wiretap. He concludes that, therefore, the necessity requirement has not been met. But law enforcement officials do not have to exhaust every investigative alternative before obtaining a wiretap. Brone, 792 F.2d at 1506. Reviewing the factual allegations of the 42-page affidavit as a whole, it does not appear that the issuing court abused its discretion in authorizing the wiretap. See id. Thus, the district court did not err in allowing admission of the wiretap evidence. Khan contends that the district court refused to grant an evidentiary hearing on his motion to suppress the wiretap evidence and that this was error. Khan’s motion, however, was before the district court at the evidentia-ry hearing held December 9, 1991. There is no indication that Khan was denied the opportunity to present evidence regarding the motion to suppress wiretap evidence at that time. C. Did the district court err by not suppressing Khan’s statements made to a U.S. DEA agent while Khan was in custody in Pakistan, because the DEA agent did not advise Khan of rights under Miranda ? 1. Standard of Review We review de novo the district court’s denial of a motion to suppress evidence. United States v. Homick, 964 F.2d 899, 903 (9th Cir.1992). Whether Khan was entitled to warnings under Miranda v. Arizona while in custody in Pakistan is an issue of law also reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). 2. Did Khan raise the Miranda issue before the district court so as to preserve it for appeal? The government contends that Khan waived this argument because the focus" }, { "docid": "17083400", "title": "", "text": "understanding that an attorney-client relationship existed between them. See, e.g., Gonzalez v. Union Pac. R.R. Co., 282 Neb. 47, 803 N.W.2d 424, 447 (2011) (no attorney-client relationship existed where no evidence was presented that the person claiming existence of the relationship “understood herself to have such a relationship with [the attorney]”); see also Swanson v. Ptak, 268 Neb. 265, 682 N.W.2d 225, 230-31 (2004) (no implied attorney — client relationship where lawyer’s duties did not extend to the person claiming the relationship, despite the fact that the person held a “unilateral belief that [the attorney] was acting as her attorney” and such belief was “sincere”). For the reasons set forth above, we hold that Williams did not have an attorney— client relationship with Haddock and therefore the government could not have unconstitutionally intruded into any such relationship. Accordingly, the district court did not err in denying Williams’s motion to dismiss the superseding indictment or, alternatively, suppress statements that he made to Haddock. C. Motion to Suppress Statements to Conway Williams’s second argument on appeal is that district court erred in denying his motion to suppress statements made to Conway. Specifically, Williams claims that his statements to Conway “were not the result of an independent decision to waive his previously asserted Fifth Amendment right to remain silent, but rather were [1] the involuntary response to an untenable situation where he was placed in a confined location with a government agent and subjected to questioning about [2] the very conduct for which he had previously asserted his right to remain silent.” Accordingly, we analyze the denial of Williams’s motion to suppress on Fifth Amendment and Sixth Amendment grounds. As previously noted, we review de novo the district court’s legal determinations on a motion to suppress and review factual findings for clear error. Coleman, 700 F.3d at 334. This Court will affirm the denial of a motion to suppress “unless the decision lacks the support of substantial evidence, is based on an erroneous view of the law, or [we are] left with a firm conviction that a mistake has been made.” United States" } ]

[ { "docid": "2729987", "title": "", "text": "1978) (remarks of Sen. DeConcini). See 661 F.2d at 10. Bankruptcy court decisions have uniformly found hold harmless clauses to create nondischargeable obligations. E.g., In re Petoske, 16 B.R. 412 (Bkrtey.E.D.N.Y. 1982); Matter of Gentile, 16 B.R. 381 (Bkrtcy.S.D.Ohio 1982); In re French, 9 B.R. 464, 466-67 (Bkrtcy.S.D.Cal.1981). We agree with these courts and hold that payments in the nature of support need not be made directly to the spouse or dependent to be nondischargeable. In accordance with the express language of § 523(a)(5) the bankruptcy courts have uniformly required that joint obligations assumed by the debtor as a part of a separation or divorce settlement must be “actually in the nature of” alimony or support in order to be excepted from discharge. E.g., In re French, 9 B.R. 464, 466-67 (Bkrtcy.S.D.Cal.1981); In re Eisenberg, 18 B.R. 1001, 1003-004 (Bkrtcy.E.D.N.Y.1982); In re Dirks, 15 B.R. 775, 779 (Bkrtcy.N.M. 1981); In re French, 19 B.R. 255, 256 (Bkrtcy.M.D.Fla.1982). See also Melichar v. Ost, 661 F.2d 300, 303 (4th Cir.1981). The issue of when an assumption of joint debts is “in the nature of alimony, maintenance, or support” as opposed to a division of communal property is to be determined by federal bankruptcy law. E.g., In re Petoske, 16 B.R. 412 (Bkrtcy.E.D.N.Y.1982); In re Daiker, 5 B.R. 348, 351-52 (Bkrtcy. Minn.1980). See In re Spong, 661 F.2d 6, 8-9 (2nd Cir.1981). See generally 3 Collier on Bankruptcy § 523.15(1) (15th Ed.1981). The legislative history of the provision is unequivocal on this point. Both the House and Senate Reports declare: What constitutes alimony, maintenance, or support, will be determined under the bankruptcy law, not State law. Thus, cases such as In re Waller, 494 F.2d 447 (6th Cir.1974), are overruled, and the result in cases such as Fife v. Fife, 1 Utah 2d 281, 265 P.2d 642 (1952) is followed. The Proviso, however, makes non-dis-chargeable any debts resulting from an agreement by the debtor to hold the debt- or’s spouse harmless, on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined" } ]

[ { "docid": "16472915", "title": "", "text": "or support or in the nature of a property settlement. In brief, if the obligations are deemed to be in the form of support, they are nondisehargeable. They are discharge-able, however, if they are construed as being property settlements. The burden of proof in this matter is on the Plaintiff to prove nondischargeability. In re Daiker, 5 B.R. 348, 351-52 (Bankr.Minn.1980). III. The issue of when an assumption of joint debts is in the nature of alimony, maintenance or support versus that of a property settlement is to be determined by federal bankruptcy law, not state law. In re Spong, 661 F.2d 6, 8-9 (2d Cir.1981). In this Circuit, the leading case concerning dischargeability of divorce-related obligations is In re Calhoun, 715 F.2d 1103 (6th Cir.1983). The Sixth Circuit set forth a three-prong test to determine the dis-chargeability of debts under 11 U.S.C. § 523(a)(5). In pertinent part § 523(a)(5) provides: (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 other order of a court of record, determination made in accordance with state or territorial law by a governmental unit, or property settlement agreement. 11 U.S.C. § 523(a)(5). In establishing the test, the Court first addressed the question of whether or not payments must be made directly to the spouse to constitute alimony or support, and concluded that direct payment is not a requirement for the assumed debt to be nondischargeable. In re Calhoun at 1107. The Court looked to the legislative history to support its finding, in particular: This provision will, however, make non-dischargeable any debts resulting from an agreement by the debtor to hold the debtor’s spouse harmless on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations that are similar to considerations of whether a particular agreement to pay money" }, { "docid": "1859320", "title": "", "text": "is clear from case law, a determination of whether a debt is in the nature of alimony, maintenance, or support under § 523(a)(5) is a question of federal bankruptcy law and the intent of the parties at the time of the divorce decree. Sylvester v. Sylvester, 865 F.2d 1164, 1166 (C.A.10 1989); In re Gatliff, 266 B.R. 381, 387 (Bkrtcy.N.D.Ill.2000); In re Coffman, 52 B.R. 667, 670 (Bkrtcy.D.Md.1985). To ascertain the intent of the parties, courts examine the circumstances surrounding the agreement at the time that they entered into it. In re Gianakas, 917 F.2d 759, 762 (C.A.3 1990); In re Yeates, 807 F.2d 874, 878 (C.A.10 1986). Defendant argues that there is a genuine dispute as to whether the parties intended to create a child support obligation when they agreed to share equally in the children’s private school tuition and related expenses. In support, Defendant points out that the obligation of Defendant to equally share the “tuition and related costs associated with private school” is not listed under the heading “Child Support,” rather under the heading “Custody and Visitation” at ¶ 20, and that Child Support was to be set at $0.00. The court rejects this proposition. First, this court has held that in ascertaining intent, courts are not required to accept parties’ labels and are to look beyond the labels. See In re Grimes, 46 B.R. 84, 86 (Bkrtcy.D.Md.1985) (citing Melichar v. Ost, 661 F.2d 300, 303 (C.A.4 1981); In re Coil, 680 F.2d 1170, 1171-72 (C.A.7 1982); Stout v. Prussel, 691 F.2d 859, 861 (C.A.9 1982); Williams v. Williams, 703 F.2d 1055, 1057-58 (C.A.8 1983); Long v. Calhoun, 715 F.2d 1103, 1109 (C.A.6 1983)); see also In re Gatliff, 266 B.R. 381, 388 (Bkrtcy.N.D.Ill.2000)(tuition reimbursement obligation nondis-chargeable despite not being placed under “Child Support” heading). Second, even when considering the parties’ labels, while Defendant’s obligation to share equally in the children’s private school tuition is fully set forth in ¶ 20 of “Custody and Visitation,” the obligation is also reiterated in ¶ 24 of “Child Support” as a means to show consideration for the parties’ agreement not" }, { "docid": "20918934", "title": "", "text": "The legislative history further states: This provision will ... make nondis-chargeable any debts resulting from an agreement by the debtor to hold the debtor’s spouse harmless on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations that are similar to considerations of whether a particular agreement to pay money to a spouse is actually alimony or a property settlement. H.R.Rep. No. 595, at 364, reprinted in 1978 U.S.Code Cong. & Ad.News at 6320; see also S.Rep. No. 989, at 79, reprinted in 1978 U.S.Code Cong. & Ad.News at 5865. The question, thus, is whether the obligation was assumed in lieu of support or constitutes a property settlement, and, as stated above, bankruptcy law, not state law, must control that characterization. This is not to say that state law has no effect. Domestic law principles are particularly within the domain of the state courts, and Congress could not have meant that the bankruptcy courts were to ignore well-developed principles of state law. Long v. Calhoun (In re Calhoun), 715 F.2d 1103, 1107 (6th Cir.1983); Pauley v. Spong (In re Spong), 661 F.2d 6, 9 (2d Cir.1981). The district court in the present case correctly stated: The bankruptcy law determination as to whether an agreement to pay is support or a property settlement will involve some of the same considerations as the state law determination as to whether alimony will be awarded. The focus, however, is quite different. A state court judge decides if a legal obligation to pay alimony should arise. A bankruptcy court judge is faced with a different situation, since in his case a legal obligation already exists. He must determine whether that already existing obligation is support or a property settlement. Yeates, 44 B.R. at 578-79. State law provides guidance, but bankruptcy law controls the determination of whether a payment is for support or reflects a property settlement. Since state law only provides guidance, a debt could be in the “nature of support” under section 528(a)(5) even though it would not legally" }, { "docid": "10186286", "title": "", "text": "dispute. The section under which defendant Cherie seeks to except the debts in issue from discharge provides that a discharge under chapter 7 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— ****** (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 Sixth Circuit in Long v. Calhoun, 715 F.2d 1103 (6th Cir.1983), set forth a three part test for determining the dis-chargeability of a debt incurred pursuant to a divorce decree. That is, ... the initial inquiry must be to ascertain whether the state court or the parties to the divorce intended to create an obligation to provide support through the assumption of joint debts. ****** If the bankruptcy court finds, as a threshold matter, that assumption of the debts was intended as support it must next inquire whether such assumption has the effect of providing the support necessary to ensure that the daily needs of the former spouse and any children of the marriage are satisfied. ****** Having found that the loan assumption has the effect of providing necessary support, the Bankruptcy Court must finally determine that the amount of support represented by the assumption is not so excessive that it is manifestly unreasonable under traditional concepts of support. Id. at 1109-10. Factors for the court’s consideration in determining the parties’ intent in creating this obligation include: 1. whether there is an underlying obligation to pay alimony or support in the first instance; 2. the amount of alimony or support a state court would have reasonably granted; 3. whether a provision is made for termination of the debtor’s obligation upon remarriage of the former spouse ...;" }, { "docid": "18768928", "title": "", "text": "Coil, 680 F.2d 1170 (7th Cir.1982), Boyle v. Donovan, 724 F.2d 681 (8th Cir.1984). The courts have also held consistently that the burden of proof for the establishment of a cause of action for non-dis-chargeability rests upon that person who is asserting the non-dischargeability of the debt. In re Gabele, 15 B.R. 221 (Bkrtcy. ND Ohio 1981), In re Helm, 48 B.R. 215 (Bkrtcy. WD Ky.1985). The leading case was decided by the 6th Circuit in 1983. In re Calhoun, 715 F.2d 1103 (6th Cir.1983). There the Sixth Circuit held that the bankruptcy court had the power to find that hold harmless clauses created non-dis-chargeable obligations if the burden of proof was met. See also In re Spong, 661 F.2d 6 (2d Cir.1981). This Court must therefore determine what tests it should apply to make a finding as to whether or not the particular payments set forth in the divorce decree constitute alimony and support. In In re Coffman, 52 B.R. 667 (Bkrtcy.D.Md.1985) Judge Mannes set forth an exhaustive list analyzing every factor he could extract from the reported cases. The factors he set forth were as follows: 1. Whether there was an alimony award entered by the state court. 2. Whether there was a need for support at the time of the decree; whether the support award would have been inadequate absent the obligation in question. 3. The intention of the court to provide support. 4. Whether debtor’s obligation terminates upon death or remarriage of the spouse or a certain age of the children or any other contingency such as a change in circumstances. 5. The age, health, work skills and educational levels of the parties. 6. Whether the payments are made periodically over an extended period or in a lump sum. 7. The existence of a legal or moral “obligation” to pay alimony or support. 8. The express terms of the debt characterization under state law. 9. Whether the obligation is enforceable by contempt. 10. The duration of the marriage. 11. The financial resources of each spouse, including income from employment or elsewhere. 12. Whether the payment was" }, { "docid": "18755639", "title": "", "text": "must also be construed in favor of the party opposing the motion for summary judgment. Smith v. Hudson, 600 F.2d 60 (6th Cir.1979), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415. THE § 523(a)(5) CAUSE OF ACTION In her motion seeking summary judgment, the plaintiff argues that the defendant’s continuing obligation to pay thirty percent of each month’s Military Retirement Funds is nondischargeable pursuant to 11 U.S.C. 523(a)(5). For reasons set forth below, however, the Court finds, as a matter of law, that the defendant’s obligation relating to the Military Retirement Funds is not a debt which arose in the nature of support. Section 523(a)(5) states that a discharge under 11 U.S.C. § 727 does not discharge an individual debtor from any debt: [T]o 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 or property settlement agreement, but not to the extent that: sjc * * * * Jfr (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 Court of Appeals for the Sixth Circuit has clearly stated the standard to be applied to determine whether an obligation arising from a divorce decree is dis-chargeable under § 523(a)(5). The factors to be considered are whether the state court or the parties intended the obligation to be for support, whether the obligation has the effect of providing support necessary for daily needs, and lastly, whether the obligation was reasonable in light of traditional concepts of support and the party’s resources at the time of the award and prospectively. Long v. Calhoun, 715 F.2d 1103 (6th Cir.1983). If the first factor is not met, the analysis ends and the debt is dischargeable. Calhoun, 715 F.2d at 1109. In the present case, the Court finds that the plaintiffs entitlement to her thirty percent interest in the Military Retirement Funds was not intended by the state" }, { "docid": "18996094", "title": "", "text": "spouse needs support. Shaver mentioned such circumstances as the presence of minor children, imbalance in the relative incomes of the parties, the nature and duration of the obligation, as factors which may be considered by the bankruptcy judge in determining whether a certain settlement, regardless of how it is labelled, is for support. The bankruptcy judge noted that appellee was 60 years old, had not worked outside the home during marriage, and had received support of $200.00 per week from appellant during the marriage, and even after appellant left the home up until the Settlement Agreement. The bankruptcy judge found these facts to be a clear indication that appellee needed spousal support. In conclusion, the bankruptcy judge’s finding shall be set aside only if “clearly erroneous” In Re Calhoun, 715 F.2d 1103, 1110 (6th Cir.1983). Insofar as there was ample support for the bankruptcy judge’s findings, we affirm the decision below. GUY, Circuit Judge, concurring. I concur separately for the reason that I find Long v. Calhoun (In re Calhoun), 715 F.2d 1103 (6th Cir.1983), to be dispositive of the issues raised in this appeal and to emphasize the importance of the test set forth by this court in that case. I. Defendants raise two issues on appeal: (1) whether Judge Sidman, the bankruptcy judge, erred in considering and relying on state law in determining dischargeability; and (2) whether the bankruptcy court erred in considering the changed circumstances and present need of plaintiff in determining dischargeability. Prior to Calhoun, there was no direction from this court on these two issues, and courts were split on both issues in determining whether payments by a debtor are in the nature of alimony or property settlement. 11 U.S.C.A. § 523 states in pertinent part: § 523. Exceptions to discharge. (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" }, { "docid": "18734979", "title": "", "text": "proceeding seeking relief under Chapter 7. At issue is whether the $100.00 per month provision in the divorce Decree to be paid by the debtor to the plaintiff is alimony, maintenance, or support, and hence, nondischargeable under the provisions of 523(a)(5)(B). It is well-settled that the burden of proof in contesting the discharge-ability of a debt is upon the creditor. In re Calhoun, 715 F.2d 1103, 1111 (6th Cir.1983). Section 523(a)(5) represents Congress’ resolution of the conflict between the discharge of obligations allowed by the bankruptcy laws and the need to ensure necessary financial support for the divorced spouse and children of the debtor. The issue of when an obligation is “in the nature of alimony, maintenance, or support” as opposed to a division of communal property is to be determined by federal bankruptcy law, not state law. S.Rep. No. 95-989, 95th Cong., 2d Sess., 79, reprinted in [1978] U.S.Code Cong, and Ad.News 5787, 5865. See also H.R. No. 95-595, 95th Cong., 1st Sess., 364 (1977), reprinted in [1978] U.S.Code Cong., and Ad.News 5968, 6320. Applying the rationale set forth in In re Calhoun, 715 F.2d 1103 (6th Cir.1983), the initial inquiry must be to ascertain whether the state court or the parties to the divorce intended to create an obligation to provide support. In making this determination, the bankruptcy court may consider any relevant evidence, including those factors utilized by state courts to make a factual determination of intent to create support. In this respect, it is significant to note that the Texas Supreme Court has recognized that support payments, although considered alimony in other states, are not so characterized in Texas. Francis v. Francis, 412 S.W.2d 29, 32 (Tex.1967). Thus, in Erspan v. Badgett, 647 F.2d 550 (5th Cir.1981), the Court held that for purposes of interpreting the federal bankruptcy law, the federal court is not bound by the label a state attaches to an award, but rather must look to its substance. Further, as noted in Francis v. Francis, supra., under the scheme of the Texas Family Code, a divorce court is authorized to divide the separate" }, { "docid": "8390834", "title": "", "text": "or is not discharged 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. The initial question is whether Section 523(a)(5) requires that obligations be payable directly to the former spouse or children to qualify for nondischargeability status. This point was recently addressed by the 6th Circuit which held that payments in the nature of support need not be made directly to the spouse or dependent to be nondischargeable. In Re Calhoun, supra. This Court approves the reasoning and holding of the 6th Circuit. Debts payable to third parties can be viewed as maintenance or support obligations under this statute; the crucial issue is the function the award was intended to serve. In Re Williams, 703 F.2d 1055, 1057 (8th Cir.1983); In Re Spong, 661 F.2d 6 (2d Cir.1981); Matter of Danneman, No. 180-0100 (Bcy.S.D.Ga.1980); Matter of Coil, 680 F.2d 1170 (7th Cir.1982). It is a well established principle of bankruptcy law that dis-chargeability must be determined by the substance of the liability rather than its form. In Re Spong, at 9. Pertinent legislative history supports this position. Id. The legislative history of this provision makes it clear that the determination of whether a debt is “actually in the nature of alimony, maintenance, or support” is to be made under federal bankruptcy law. H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 363 (1977); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 77-79 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. See also Collier on Bankruptcy ¶ 523.15, p. 523-109 (15th Ed.1980). In Re Lineberry, 9 B.R. 700, 704 (W.D.Mo.1981); Matter of Painter, 21 B.R. 846 (Bcy.M.D.Ga.1982); Matter of Thompson, No. 82-5127 (Bcy.M.D.Ga.1982); Matter of Stranahan, 5" }, { "docid": "18768927", "title": "", "text": "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 ... The initial determination which must be made is whether or not the bankruptcy court is bound by the state court findings. The law unquestionably places the burden of the determination on the bankruptcy court. In re Bedingfield, 42 B.R. 641 (SD Ga.1983). The legislative history of the Bankruptcy Code is equally clear. H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 363, 364 (1977); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 1977-79 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News, p. 5787, 6320. In appropriate cases the issue of whether or not the debt is the subject of a payment from one spouse to the other or in the alternative an indemnification by one spouse of a debt paid by the non-debtor spouse is irrelevant to a determination of whether or not the debt is dischargeable. Matter of Coil, 680 F.2d 1170 (7th Cir.1982), Boyle v. Donovan, 724 F.2d 681 (8th Cir.1984). The courts have also held consistently that the burden of proof for the establishment of a cause of action for non-dis-chargeability rests upon that person who is asserting the non-dischargeability of the debt. In re Gabele, 15 B.R. 221 (Bkrtcy. ND Ohio 1981), In re Helm, 48 B.R. 215 (Bkrtcy. WD Ky.1985). The leading case was decided by the 6th Circuit in 1983. In re Calhoun, 715 F.2d 1103 (6th Cir.1983). There the Sixth Circuit held that the bankruptcy court had the power to find that hold harmless clauses created non-dis-chargeable obligations if the burden of proof was met. See also In re Spong, 661 F.2d 6 (2d Cir.1981). This Court must therefore determine what tests it should apply to make a finding as to whether or not the particular payments set forth in the divorce decree constitute alimony and support. In In re Coffman, 52 B.R. 667 (Bkrtcy.D.Md.1985) Judge Mannes set forth an exhaustive list analyzing every factor he could" }, { "docid": "6938454", "title": "", "text": "whether the liability at issue was one for maintenance, alimony or support — is generally considered a factual one, see In re Calhoun, 715 F.2d 1103, 1110 (6th Cir.1983), which cannot be set aside unless clearly erroneous. Bankruptcy Rule 8013. In this case, however, the determination that the fee award was in the nature of a division of community debt rather than spousal support is akin to a summary judgment determination as it was made solely on the basis of documentary evidence. Therefore, de novo review is most appropriate. See In re Marvin Properties, Inc., 854 F.2d 1183, 1185 (9th Cir.1988) (summary judgment determinations are reviewed de novo). DISCUSSION Section 523(a)(5) 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 ...” Like all other exceptions to discharge, analysis under section 523(a)(5) begins with the principle that discharge is favored under the Bankruptcy Code and the party asserting nondischargeability has the burden of demonstrating that the obligation at issue is actually in the nature of alimony, maintenance or support. Tilley v. Jessee, 789 F.2d 1074, 1077 (4th Cir.1986). Bankruptcy courts look to federal law, not state law to determine whether an obligation is actually in the nature of alimony, maintenance or support. E.g. Shaver, 736 F.2d at 1316; 3 Collier on Bankruptcy P 523.15[1] (15th Ed. 1988). Although not bound by state law, courts can, however, look to state law for guidance. See In re Spong, 661 F.2d 6, 8-9 (2d Cir.1981). In determining whether an obligation is in the nature of alimony, maintenance or support, “the court must look to the “intent of the parties and the substance of the obligation.” Shaver, 736 F.2d at 1316. A factor in characterizing an obligation as one intended for support is the need of the recipient spouse. Id. Factors indicating the need for support “include the presence of minor children and an imbalance in the relative income of the" }, { "docid": "5994500", "title": "", "text": "Stranathan, 15 B.R. 223 (Bankr.D.Neb.1981); In re Trichon, 11 B.R. 658 (Bankr.S.D.N.Y.1981). The Appellees have listed in their brief twelve factors which the courts have from time to time applied in assessing the obligations of a debtor spouse. Although not all are relevant to the instant dispute, they are set forth below: 1. Whether the payments are to be made directly to the spouse. 2. The relative earnings of the parties. 3. Evidence that the spouse relinquished rights and property in return for the payment of the obligations. 4. The efforts of a spouse toward the successful completion of the other’s professional education. 5. The length of the parties’ marriage and the number of dependent children. 6. The document itself and any inferences which can be drawn from placement of specific provisions within the document. 7. The language of the divorce decree. 8. The treatment under prevailing state law. 9. Whether the debt was incurred for the immediate living expenses of the spouse. 10. Whether the payments were intended for the economic safety of the dependants). 11. Whether the obligation is enforceable by contempt. 12. Whether the payments are payable in installments over a substantial period of time. Appellant’s brief at 5. This then is the Court’s task: To determine whether the Bankruptcy Court erred in finding the obligations of Dr. Grijalva to be nondischarga-ble. As a further matter, the Court notes that the standard of review on this appeal counsels deference to the Bankruptcy Court. The findings of that court will not be set aside unless they are clearly erroneous. Bankruptcy Rule 8013. See also Boyle v. Donovan, 724 F.2d 681, 683 (8th Cir.1984); In re Coil, 680 F.2d 1170, 1172 (7th Cir.1982). With this standard in mind, the Court now turns to each of the points preserved by Dr. Girjalva. A. Mortgage payments. The Bankruptcy Court found the doctor’s obligation to make mortgage payments on the former marital residence to be in the nature of alimony and child support and, therefore, nondischargable. The Bankruptcy Court opined that amount of the mortgage payments, when added to the other alimony" }, { "docid": "1137071", "title": "", "text": "B.R. 84 (Bankr.D.Md.1985); In re Bowers, 43 B.R. 333 (Bankr.E.D.Pa.1984); In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984); Stamper v. Stamper, 17 B.R. 216 (Bankr.S.D.Ohio 1982). Various federal courts have enumerated many tests, factors, and guidelines to determine whether or not a given obligation flowing from a divorce decree is in the nature of a property settlement and dis-chargeable, or is in the nature of support, maintenance and alimony and nondis-chargeable. The Seventh Circuit has spoken on the issue in Matter of Coil. There the Court stated: An indebtedness for a former spouse for alimony, maintenance, or support of the spouse or the couple’s children which is memorialized in the divorce decree is not dischargeable in bankruptcy. 11 U.S.C. § 523(a)(5). An indebtedness in the divorce decree that merely divides the marital property, however, is dis-chargeable. In re Maitlen, 658 F.2d 466 (7th Cir.1981). In In re Woods, [561 F.2d 27, 3 B.C.D. 750 (7th Cir.1977) ] we noted that in determining whether an obligation memorialized in a divorce decree is dischargea-ble, the bankruptcy court must attempt to effectuate the parties’ or the divorce court’s intent. We discussed four factors that might assist the bankruptcy court in discerning what the parties of (sic) the divorce court intended: (1) whether the settlement agreement includes provision for payments to the ex-spouse; (2) whether there is any indication that the hold-harmless provision was intended to balance the relative incomes of the parties; (3) whether the hold-harmless clause is in the midst of provisions allocating property; and (4) whether the hold-harmless provision describes the character and method of payment. ... ****** The Woods factors, however, are not exhaustive. We noted in Woods that the bankruptcy court was forced to rely on these factors because there was no evidence in the record indicating what the divorce court or the parties intended.... (Emphasis supplied). Matter of Coil, 680 F.2d 1170, 1171-72 (7th Cir.1982). In Coil, the Seventh Circuit upheld the bankruptcy court’s holding that the state divorce decree which required that the debtor pay and hold his former spouse harmless from certain marital bills was a nondischargeable" }, { "docid": "1768405", "title": "", "text": "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 or property settlement agreement, but not to the extent that— 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.... Debtor does not contest the fact that amounts are due Plaintiff under the terms of the separation agreement. However, Debtor contends that these amounts constitute a “property settlement” and are thus dischargeable under the terms of Section 523(a)(5). In support of his assertion, Debtor cites the case of Long v. Calhoun (In re Calhoun), 715 F.2d 1103 (6th Cir.1983). In that case, the Sixth Circuit Court of Appeals was faced with the issue of when an assumption of joint debts pursuant to a separation agreement constitutes nondischargeable alimony, maintenance or support under Section 523(a)(5). In determining that the case should be remanded back to the bankruptcy court for further proceedings, the court set forth a three-pronged inquiry to be used by courts in considering the dischargeability of a continuing obligation to hold a former spouse harmless on past marital debts. First, the bankruptcy court must ascertain whether the state court or the parties to the divorce intended to create a support obligation through the assumption of joint debts. If the court finds that the parties so intended, then the court must next inquire whether the assumption has the effect of providing the support necessary to insure that the daily needs of the former spouse and any children are met. Finally, if the court finds that the continuing assumption of joint debts is necessary, the court must determine that the amount of support represented by the assumption is not so excessive that it is manifestly unreasonable under traditional concepts of support. Debtor contends that the Calhoun" }, { "docid": "13950817", "title": "", "text": "support order are subject to discharge. The dischargeability of support debts is governed by 11 U.S.C. § 523(a)(5), which states in pertinent part: § 523 Exceptions to discharge (a)A discharge under sections 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, ... but not to the extent that— (B) such debt includes a libility designated as alimony, maintenance, or support, unless such liability is actually in- the nature of alimony, maintenance, or support. Under § 523(a)(5), support obligations imposed by a divorce decree are not dis-chargeable in a Chapter 7 proceeding. However, while a divorce decree may label a particular obligation as support, it is well established that the nature of the obligation is determined by federal bankruptcy law. Singer v. Singer (In re Singer), 787 F.2d 1033, 1035 (6th Cir.1986) (Guy, J., concurring). In Long v. Calhoun (In re Calhoun), 715 F.2d 1103 (6th Cir.1983), the Court of Appeals for the Sixth Circuit set forth a formula for determining whether payments by a debtor are in the nature of support. That formula includes: (a) whether the intent of the state court or the parties was to create a support obligation; (b) whether the support provision has the actual effect of providing necessary support; (c) whether the amount of support is so excessive as to be unreasonable under traditional concepts of support; and (d) if the amount of support is unreasonable, how much of it should be characterized as nondischargeable for purposes of federal bankruptcy law. Singer, 787 F.2d at 1036. The second prong of the Calhoun test is critical to the outcome of this adversary proceeding. Clearly the obligation was intended as support. Where all three children are now emancipated, however, does the payment of child support arrearages have the actual effect of providing necessary support? The irony of that issue" }, { "docid": "5179164", "title": "", "text": "she was employed as a permanent substitute and earning approximately Sixteen Thousand Dollars ($16,000.00) a year. She has not sought employment during summer vacations. LAW The dischargeability of the disputed obligations are governed by 11 U.S.C. § 523(a)(5), which states in pertinent part: § 523 Exceptions to discharge (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— (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; ... Under this provision, obligations which are imposed by a divorce decree, and which are in the nature of alimony, maintenance or support, are not dischargeable in a proceeding under Chapter 7. • It is well established that statements within a divorce decree which label a particular obligation as alimony or property settlement do not necessarily determine the nature of the obligation under federal bankruptcy law. In re Singer, 787 F.2d 1033, 1035 (6th Cir.1986); In re Conrad, 33 B.R. 601, 603 (Bankr.N.D.Ohio 1983). The Court must examine the facts and circumstances of each case, and make a determination based upon federal bankruptcy law. In re Calhoun, 715 F.2d 1103, 1107 (6th Cir.1983); In re Hoover, 14 B.R. 592 (Bankr.N.D.Ohio 1981). The Court may also look to state law for guidance. In re Calhoun, supra, at 1107-1108. In Calhoun, the Court of Appeals set forth the test for determining whether an award is a nondisehargeable support obli gation. The elements of the Calhoun test have been summarized as follows: (a) whether the intent of the state court or the parties was to create a support obligation; (b) whether the support provision has" }, { "docid": "1135356", "title": "", "text": "maintenance, but it is impossible to determine an amount from the evidence presented at trial. The final question concerns whether the subject fees were awarded against Plaintiff in lieu of a direct maintenance or support payment to his ex-wife. Title 11 U.S.C. § 523(a)(5) provides that an indebtedness to a former spouse for alimony, maintenance, or support of the spouse or the couple’s children which is memorialized in a divorce decree is not dischargeable in bankruptcy, 11 U.S.C. § 523(a)(5). However, the division of marital property pursuant to a divorce decree is treated as a debt dischargeable in bankruptcy. In re Coil, 680 F.2d 1170, 1171 (7th Cir.1982); In re Maitlen, 658 F.2d 466, 478 (7th Cir.1981). The factors to test whether a property settlement agreement is in the nature of alimony, maintenance, or support include the following: 1. Whether the settlement agreement includes payment for the ex-spouse; 2. Whether there is any indication that provisions within the agreement were intended to balance the relative income of the parties; 3. The position of the assumption to pay debts within the agreement; 4. The character or method of payment of the assumption; 5. The nature of the obligation; 6. Whether children resulted which had to be provided for; 7. The relative future earning power of the spouse; 8. The adequacy of support absent debt assumption; 9. The parties’ understanding of the provisions; 10. The label of the obligations; 11. The age of the parties; 12. The health of the parties; 13. Existence of “hold harmless” or assumption terminology; 14. Whether the assumption terminated upon death or remarriage; 15. Whether the parties had counsel; 16. Whether there was a knowing, voluntary, and intelligent waiver of rights; 17. Length of the marriage; 18. Employment of the parties; 19. The demeanor and credibility of the parties; 20. Other special or unique circumstances of the parties. See, In re Seidel, 48 B.R. 371 (Bankr. C.D.Ill.1984); In re Woods, 561 F.2d 27 (7th Cir.1977), In re Maitlen, 658 F.2d 466 (7th Cir. 1981), In re Coil, 680 F.2d 1170 (7 th Cir.1982), In re Marriage of" }, { "docid": "16472914", "title": "", "text": "state proceedings as follows: It is further ORDERED, ADJUDGED AND DECREED that plaintiff shall be granted the marital residence located at 3011 E. Derbyshire, Cleveland Heights, Ohio, free and clear of any interest of the defendant. Plaintiff is to assume the first mortgage. The defendant shall assume the second mortgage to Bank One/SBA and hold the Plaintiff absolutely harmless. The defendant shall vacate the marital residence forthwith. It is further ORDERED, ADJUDGED AND DECREED that defendant shall assume any indebtedness to the I.R.S. for all income taxes and withholding taxes and save the plaintiff absolutely harmless thereon. With regard to the above-quoted obligations, Vera Szuch contends that such obligations were imposed for alimony, maintenance, and support, and accordingly, should be excepted from discharge pursuant to section 523(a)(5) of the Bankruptcy Code. Contrarily, Ronald Szuch contends that the subject obligations were in the form of a property settlement and are dis-chargeable in a Chapter 7 case. II. The dispositive issue for the Court’s determination is whether the obligations in question are in the nature of alimony or support or in the nature of a property settlement. In brief, if the obligations are deemed to be in the form of support, they are nondisehargeable. They are discharge-able, however, if they are construed as being property settlements. The burden of proof in this matter is on the Plaintiff to prove nondischargeability. In re Daiker, 5 B.R. 348, 351-52 (Bankr.Minn.1980). III. The issue of when an assumption of joint debts is in the nature of alimony, maintenance or support versus that of a property settlement is to be determined by federal bankruptcy law, not state law. In re Spong, 661 F.2d 6, 8-9 (2d Cir.1981). In this Circuit, the leading case concerning dischargeability of divorce-related obligations is In re Calhoun, 715 F.2d 1103 (6th Cir.1983). The Sixth Circuit set forth a three-prong test to determine the dis-chargeability of debts under 11 U.S.C. § 523(a)(5). In pertinent part § 523(a)(5) provides: (a) A discharge under section 727 of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse," }, { "docid": "18790814", "title": "", "text": "specific facts, the courts differ in results. The Bankruptcy Code provides that a debt to a former spouse of the debtor for alimony, maintenance, or support of the former spouse in connection with a divorce decree or property settlement agreement, to the extent that such liability is actually in the nature of alimony, maintenance, or support, is not dischargea-ble in the debtor’s bankruptcy. 11 U.S.C. Section 523(a)(5)(B) (1979). Whether a debt between former spouses constitutes alimony, maintenance, or support is determined under bankruptcy laws, not state law. In re Harke, 24 B.R. 645, 647 (Bankr.W.D.Penn.1982). In re Petoske, 16 B.R. 412, 413 (Bankr.E.D.N.Y.1982), both cases citing H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 364 (1977), reprinted in (1978) U.S.Code Cong. & Ad.News 5787, (5865, 5963, 6320). Federal courts have set forth many factors to test whether a separation agreement is in the nature of alimony, maintenance, or support. Though no one factor is controlling, In re Petoske, 16 B.R. 412, 413, citing In re Fox, 5 B.R. 317, 321 (Bankr.N.D.Tex.1980), these factors include: (1) whether the settlement agreement includes payments for the ex-spouse, In re Woods, 561 F.2d 27 (7th Cir.1977), In re Coil, 680 F.2d 1170, 1172 (1982); (2) whether there is any indication that provisions within the agreement were intended to balance the relative incomes of the parties, Id.; (3) the position of the assumption to pay debts within the agreement, Id.; (4) the character or method of payment of the assumption, Id.; (5) the nature of the obligations, In re Petoske, 16 B.R. 412, 413-414, citation omitted; (6) whether children resulted which had to be provided for, Id.; (7) the relative earning power of the spouses, Id.; (8) the adequacy of support absent debt assumption, Id.; and, (9) the parties’ understanding of the provisions, Id., and intent. Matter of Coil, 680 F.2d 1170, 1172 (1982). The court has considered the above listed factors and based on all the evidence holds that the Property Settlement provisions in the Seidels’ Judgment of Dissolution of Marriage is not in the nature of alimony, maintenance, or support within the meaning of" }, { "docid": "18768926", "title": "", "text": "from the most cursory reading of the divorce decree is that the attorneys’ fees in the instant case are clearly set forth as a matter of support and the payment by the husband of necessaries. In our own jurisdiction Judge Commisa in Matter of Dorman, 3 C.B.C. 2d 497 (N.J.1981), determined that the test was whether or not the attorneys’ fees were “needs” or “necessaries” and “essential to maintain a spouse in a manner commensurate with her former status as a wife” 3 C.B.C. 2d at 499. Judge DeVito in Matter of Romeo, 16 B.R. 531 (Bkrtcy.N.J.1981) made a similar determination. See also In re Williams, 703 F.2d 1055 (8th Cir.1983). The real issue in the instant case is whether or not that portion of the divorce decree which transfers the premises to the wife but makes the husband liable for the payment of the mortgages constitutes alimony and support such that the debts would be non-dischargeable pursuant to the provisions of 11 U.S.C. § 523(a)(5) which provides in pertinent part: (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 ... The initial determination which must be made is whether or not the bankruptcy court is bound by the state court findings. The law unquestionably places the burden of the determination on the bankruptcy court. In re Bedingfield, 42 B.R. 641 (SD Ga.1983). The legislative history of the Bankruptcy Code is equally clear. H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 363, 364 (1977); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 1977-79 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News, p. 5787, 6320. In appropriate cases the issue of whether or not the debt is the subject of a payment from one spouse to the other or in the alternative an indemnification by one spouse of a debt paid by the non-debtor spouse is irrelevant to a determination of whether or not the debt is dischargeable. Matter of" } ]

[ { "docid": "6903781", "title": "", "text": "the trial judge correctly allowed the government to use in evidence the grand jury testimony herein challenged. II. The appellant requested and the court gave a specific instruction on the weight to be given the testimony of an accomplice. Taking the position that the accomplices who appeared before the grand jury and were granted immunity were informers [after they were granted immuni ty], the appellant also asked the court to give the Devitt & Blackmar instruction shown in the footnote. The trial court felt that the witnesses appearing before the grand jury and later testifying for the government under grants of immunity did not fall within the definition of informer as used in the requested instruction. Though our circuit has taken the same position on somewhat related facts in United States v. Busby, 484 F.2d 994 (CA9 1973), the appellant ignores that authority and argues that United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955 (1974) controls and that it was reversible error for the trial court to refuse the informer instruction. We disagree. Preliminarily, it should be noted that the trial court in Leonard gave neither an accomplice nor an immunity instruction. This is significant as the court there pointedly observed that there would be no need on retrial for the trial judge to give both instructions, suggesting instead that the trial court merge the two. Moreover, there is no significant distinction between a cautionary instruction on the testimony of an accomplice and a cautionary instruction on one granted immunity. In both instances, the jury is instructed that the testimony “be received with caution and weighed with care.” Consequently, whether we treat the government witnesses as accomplices or as persons granted immunity, or both, is immaterial because the instruction would be essentially the same. Leonard, supra, 161 U.S.App.D.C. 36, 494 F.2d at 961-62. We are on rather solid ground in “hindsighting” that the Leonard court would not have reversed had the trial court given a proper accomplice instruction such as that given here. In any event, we are unable to detect any prejudice as the appellant was allowed" } ]

[ { "docid": "4132001", "title": "", "text": "accomplice testimony with caution is unpersuasive. A jury’s response to instructions from the judge is, and should be, quite different from its response to arguments from counsel. Counsel’s argument is neither law nor evidence, and the jury is so instructed. While it is not reversible error to fail to -do so, in a case like this, it would be better for the trial judge to instruct the jury on accomplice testimony even if such an instruction were not requested. See United States v. Davis, supra, 439 F.2d at 1106; Bible v. United States, 9 Cir., 1963, 314 F.2d 106, 108. The prejudice caused by a failure to give a cautionary instruction about accomplice testimony is increased when the witness’ testimony may .be considered otherwise unreliable. Defense counsel requested additional cautionary instructions because May was a paid informant, was a drug addict, and was not prosecuted in return for his agreement to testify. These requests were also refused. In United States v. Morgan, 9 Cir., 1977, 555 F.2d 238, 242-243, we discussed the use of multiple instructions regarding accomplice testimony and the testimony of paid informers or witnesses granted immunity. We said that “there is no significant [difference] between a cautionary instruction on the testimony of an accomplice and a cautionary instruction on one granted immunity. In both instances, the jury is instructed that the testimony ‘be received with caution and weighed with care.’ ” Id. at 243. We held that it did not matter which instruction was given, an accomplice instruction substantially the same as that quoted in footnote 1, or an informant instruction substantially the same as that quoted in footnote 4, supra. Nor do we find here a distinction between those instructions and Defendant’s Proposed Instruction No. 21, footnote 3, supra. However, we suggest to the trial judge that, in light of the multitude of reasons justifying jury instructions regarding the credibility of May’s testimony, it would be better, in a second trial, to give the jury an instruction combining these reasons. May admitted at trial that he was a drug addict. The trial judge refused to give" }, { "docid": "16486364", "title": "", "text": "Fennell, 53 F.3d 1296, 1304 (D.C.Cir.1995) (court’s general practice is to remand claim for an evidentiary hearing unless already raised before district court in motion for new trial or collateral attack). IV For his only other argument on appeal, Torres claims that because co-defendant Nunez, called as a Government witness, admitted using heroin at the time of her arrest, the district court should have given a cautionary instruction to the jury on the credibility of a drug addict’s testimony. Having failed to request such an instruction from the district court, Torres concedes that we review only for plain error. Fed. R.CRIM.P. 30, 52(b); United States v. Ga tling, 96 F.3d 1511, 1524-25 (D.C.Cir.1996). We find none. Even assuming Nunez was addicted to drags when she testified, a fact not established at trial, “this court has never adopted a rule requiring a trial court sua sponte to give a special charge regarding the credibility of ... a drag addict.” United States v. Spriggs, 996 F.2d 320, 325 (D.C.Cir.1993); cf. United States v. Kinnard, 465 F.2d 566, 572-73 (D.C.Cir.1972) (Bazelon, C.J., concurring) (urging adoption of mandatory instruction where witness is both an addict and a paid government informant). Furthermore, because the district court instructed the jury that the testimony of an accomplice “should be received with caution and scrutinized with care,” and because defense counsel cross-examined Nunez regarding her drag use, Torres has failed to demonstrate prejudice from the absence of the unrequested instruction. Cf. United States v. Burrows, 36 F.3d 875, 878 (9th Cir.1994) (observing that addict instruction unnecessary where witness’s addiction disputed, defendant has adequate opportunity for cross-examination, or court reads other cautionary instructions). We affirm. So ordered." }, { "docid": "9832620", "title": "", "text": "as to whether the letter will be admissible or not. Ferreira’s final objection as to McDonough is that the court refused to instruct the jury that he was an accomplice and that his in-eourt identification of Ferreira should be received with caution. We find no error. Assuming, and this is a close question, that he was an accomplice, see United States v. Francomano, 554 F.2d 483, 486 (1st Cir. 1977), the court’s obligation was to give an instruction that would caution the jury with respect to the use of his testimony. This obligation was met adequately by the instruction given. See United States v. Gonzalez, 491 F.2d 1202, 1207—08 (5th Cir. 1974); United States v, Wasko, 473 F.2d 1282, 1285 (7th Cir. 1973); United States v. House, 471 F.2d 886 (1st Cir. 1973). As to instructing the jury to receive McDonough’s in-court eyewitness identification of Ferreira with caution, on retrial the court should consider whether such an instruction is appropriate in light of our decision in United States v. Kavanagh, 572 F.2d 9,12-13 (1st Cir. 1978), issued after the trial from which this appeal is brought. Ferreira concedes that his last ground for appeal is a weak one, and we agree. After Ferreira had been arrested, given his Miranda warnings and informed of the charges against him, he gratuitously said, “You guys must have been surprised to find the car used in both bank robberies left in the parking lot of the school.” This statement was allowed in as evidence at trial over Ferreira’s objection. As it is clear that this statement was volunteered by Ferreira, and was not elicited by any question, it was admissible. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). IY. The defendant Hickey argues that his conviction should be reversed for two reasons. The first, that McDonough’s testimony as to what Lynch told him after Hickey and “Bubba” left his apartment was inadmissible hearsay, has already been considered in the context of Ferreira’s similar objection. We find the contention to be without merit for the reasons already set" }, { "docid": "10352551", "title": "", "text": "v. United States, 2 F.2d 504 (6th Cir. 1924). But the matter was not submitted to the jury on that basis. ’ The jury was instructed, instead, that it could only convict the defendants if it was satisfied beyond a reasonable doubt that, after September 13, 1961, acts in furtherance of the plan and in affirmance of it, with its then unlawful object, were committed by the defendants. There was evidence of such acts after that date, e. g. Kubacki forwarded installation information necessary for the manufacture of the meters; he signed the certification of receipt of the meters on the basis of which the payment on account was made (it was from that payment that Karpark realized the cash with which to make payment of the cash portion of the bribe); he received and accepted the clock at his home; Minker gave instructions to Hughes, the Karpark official, as to the place where and the person to whom to deliver the cash (from which the jury could infer that the cash was accepted and received on Minker’s behalf for distribution in accordance with his directions). Under such instructions, defendants’ argument as to the ex post facto application of § 1952 lacks substance. United States v. Perlstein, 126 F.2d 789 (3d Cir. 1942), cert. den., 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942); Bailey v. United States, 5 F.2d 437 (5th Cir. 1925). See also, United States v. Goldberger, 197 F.2d 330 (3d Cir. 1952), cert. den., 344 U.S. 833, 73 S.Ct. 40, 97 L.Ed. 648 (1952). Competence of Wade Defendants assert that the government’s star witness, former Chief of Police Wade, should have been declared incompetent because he was an admitted perjurer, was testifying under a grant of immunity and was an unindicted accomplice. Such facts did not render him incompetent, they were all factors for the jury to consider, under appropriate cautionary instructions, in assessing his credibility. Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406 (1918); United States v. Margolis, 138 F.2d 1002 (3d Cir. 1943); United States v. Segelman, 83" }, { "docid": "6398246", "title": "", "text": "in two sales of narcotics in December of 1971. While there was other testimony associating defendant Mendez with the co-defendants and placing him on several occasions at the Cit-go gasoline filling station operated by Gonzalez, Monnar’s testimony is essentially the only evidence that seriously implicates Mendez as a participant in the charged crimes. The defendants submitted to the court a proposed instruction that would have informed the jury to closely scrutinize informer testimony, but the court declined to give this particular instruction. Instead, the trial court instructed the jury, in addition to the general instruction regarding witness credibility, that “[t]he testimony of an accomplice or an informer who provides testimony against a defendant under grant of immunity from punishment or with a promise of reward should be viewed with great caution and weighed with great care.” Counsel timely objected to the court’s charge. Because the judiciary has recognized that a criminal conviction may stand when based solely on the uncorroborated testimony of an informant or accomplice, it has been careful to fully apprise the jury of the inherent possibility of such testimony’s untruthfulness. United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566, 570 (1972). Although the giving of an accomplice or informant credibility instruction is largely within the discretion of the trial court, there are instances in which the defendant is entitled to such an instruction. United States v. Collins, 472 F.2d 1017, 1018-1019 (5th Cir., 1972) ; Tillery v. United States, 411 F.2d 644, 648 (5th Cir., 1969); Williamson v. United States, 332 F.2d 123, 132-133 (5th Cir., 1964). The defendants in the case at hand were entitled to an informer credibility instruction because they specifically requested it, and the testimony implicating defendant Mendez’s guilt was elicited solely from a government informer. But while the defendants were entitled to such an instruction under the circumstances of this case, the trial court was not obligated to give an instruction regarding accomplice testimony and also separately instruct the jury on an informer’s testimony. The defendants argue that the substance of the two instructions would be significantly different, and therefore the" }, { "docid": "8700041", "title": "", "text": "is that it was an abuse of discretion and reversible error for the trial judge, after a request by defense counsel, to fail to give a specific charge to the jury on the dangers of eyewitness identification. The trial judge declined to give such an instruction, and limited his charge to the general issue of credibility. The defendant challenges this ruling and urges in support of his position further consideration of recent decisions of the Third Circuit and District of Columbia Courts of Appeals, and also of this court, either adopting or suggesting the use of a specific cautionary charge in criminal cases where identification of the defendant is a key issue. United States v. Barber, supra, 442 F.2d 517 (3rd Cir., 1971), cert, den., 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971); Salley v. United States, 122 U. S.App.D.C. 359, 353 F.2d 897 (1965); Macklin v. United States, supra, 133 U. S.App.D.C. 347, 409 F.2d 174 (1969). See also United States v. Fernandez (I), supra, 456 F.2d 638 (2nd Cir., 1972). There is no question that identification testimony is notably fallible, and the result of it can be, and sometimes has been, “the greatest single injustice that can arise out of our system of criminal law,” Gregory v. United States (I), 125 U.S.App.D.C. 140, 369 F.2d 185, 190 (D.C.Cir., 1966), cert, den., 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 (1969), namely the conviction of the wrong man through a mistake in identity. The dangers in this area have been well chronicled, and have been the proper subject of careful attention in this and many other courts and by members of the legal profession. We note, however, that there is also “formidable precedential authority which holds that it is necessary neither to instruct the jury that they should receive certain identification testimony with caution, nor to suggest to them the inherent unreliability of certain eye-witness identification.” United States v. Barber, supra, 442 F.2d at 526. In Barber, for example, the court approved the use of a specific cautionary charge only prospectively, and then not in all" }, { "docid": "12658217", "title": "", "text": "Wynn, Rowland and Dizeo — only Dizeo was not mentioned by name in one or both of the special instructions; and her testimony was merely cumulative. In addition to the special instructions, the jury was cautioned generally in passing upon credibility, “to scrutinize the testimony given by each witness, the circumstances under which each has testified, and his intelligence, his or her motive and state of mind, and his or her demeanor and manner while on the witness stand.” Despite the instructions on paid informers, accomplices, and the credibility of witnesses, defendant argues that his requested instructions cautioning the jury in receiving the testimony of drug addicts should have been granted. He places principal reliance on United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566 (1972); United States v. Griffin, 382 F.2d 823 (6 Cir. 1967), and Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321 (1946), which held that a cautionary instruction was required when a paid addict informer’s testimony was the government’s sole evidence on one or more material elements of the case. While it does not appear that this circuit has yet addressed the question of addict instructions, we note that several circuits in addition to the District of Columbia Circuit and Sixth Circuit have recently spoken approvingly of addict instructions. See, e. g., Virgin Islands v. Hendricks, 476 F.2d 776, 779-780 (3 Cir. 1973); United States v. Collins, 472 F.2d 1017, 1018-1019 (5 Cir. 1972). We conclude, for the reasons hereafter stated, that the district court was not in error in denying defendant’s requested addict instructions. The leading case of United States v. Kinnard identified the special dangers that paid addict informers would fabricate testimony. These addiction-related motivations to prevaricate are the addict’s fear of retribution from higher-ups in the drug trade, his desire to avoid the harsh penalties for narcotic vi olations, and, most importantly, his fear that a failure to secure conviction would mean that he could no longer support his habit — and might face withdrawal symptoms — either because he would no longer be free from incarceration and thus have" }, { "docid": "22841586", "title": "", "text": "surmised would be defense counsel’s argument, i. e. the untrustworthiness of eye-witness identification. Defense counsel in summation argued to the jury that eye-witness testimony suffers from serious distortions because of surrounding circumstances. And again, Government’s counsel in rebuttal returned to the identification issue. Finally, we note the recent Second Circuit case, United States v. Evans, 484 F.2d 1178 (2d Cir. 1973). In Evans, defense counsel requested the trial judge to give a specific charge to the jury regarding the dangers of eyewitness identification. The trial judge declined to give such an instruction and the Second Circuit panel refused to find error, holding that such a charge is “at most * * * ” a matter of discretion. Evans, supra, 484 F.2d at 1188. Defendant’s counsel here, as in Evans, had a “full opportunity” to develop all facts relevant to identification. Furthermore, we concur with the Second Circuit’s endorsement of United States v. Barber, 442 F.2d 517, 526 (3rd Cir. 1971) cert. denied 404 U.S. 958, 92 S.Ct. 327, 30 L. Ed.2d 275 (1971) that “it is necessary neither to instruct the jury that they should receive certain identification testimony with caution, nor to suggest to them the inherent unreliability of certain eye-witness identification.” IV. IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE Appellant Amaral contends that the court below erred in admitting testimony and exhibits which had “virtually no probative value, were grossly prejudicial and should have been excluded from evidence.” [Appellant’s Opening Brief, p. 37] The testimony objected to served as one link connecting appellant Amaral to the truck seen in the vicinity of the bank the morning of the robbery. We, therefore, reject appellant’s contention that the testimony “added nothing” to the Government’s case [Appellant’s Opening Brief, p. 38]. The situation before us is far different from that in Diaz-Rosendo v. United States, 364 F.2d 941, 944 (9th Cir. 1966) where this Court could “not see how, or in what manner, it [could] be said that [the evidence admitted] in any way relates to or tends to prove the commission of the . crimes set forth in the indictment.” V. PHOTOGRAPHIC" }, { "docid": "21573433", "title": "", "text": "but failure to give without request is not plain error). The question is not whether “the trial court failed to isolate and cure a particularly ailing instruction but whether the ailing instruction by itself so infected the trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). We find that it did not. Furthermore, jury instructions must be interpreted as a whole. United States v. Pitocchelli, 830 F.2d 401, 404 (1st Cir.1987). Any particular instruction must be evaluated in the context of the entire charge. Cupp, 414 U.S. at 146-47, 94 S.Ct. at 400-01; United States v. Morris, 700 F.2d 427, 433 (1st Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983). The district court gave the substance of the requested charge by instructing the jury to be aware of any interest that a witness might have and to examine the testimony of witnesses testifying under immunity with particularly great care. There is no significant distinction between a cautionary instruction on the testimony of an accomplice and a cautionary instruction on a witness granted immunity. United States v. Hickey, 596 F.2d 1082, 1091 & 1091 n. 6 (1st Cir.), cert. denied, 444 U.S. 853, 100 S.Ct. 107, 62 L.Ed.2d 70 (1979) (court’s instruction cautioning jury with respect to informant testimony held adequate where request was one cautioning jury against accomplice testimony). In both instances, the jury is instructed that the testimony must be received with caution and weighed with care. Consequently, whether we treat the government witnesses as accomplices or as persons granted immunity, or both, is immaterial because the instruction would be the same. United States v. Morgan, 555 F.2d 238, 243 (9th Cir.1977) (cited with favor in Capone, 683 F.2d at 588). The charge as given did not deny defendants any substantial rights. Defendants also argue that by failing to give the instruction they requested, the judge failed to charge on a defense theory of the case. Defendants use “defense theory” in a broad sense to mean that their trial strategy" }, { "docid": "17356326", "title": "", "text": "completely exculpatory of Mario. And more significantly, neither of the DEA agents who, by Marquez’s testimony, were at one meeting with him and Guillermo where Mario’s name was mentioned supported Marquez’s story. The sole charge to this jury relating to the credibility of witnesses was general in nature, cautioning the jurors to “give the testimony of each witness careful scrutiny . . . ” and to take into consideration “any circumstances which tend to shed light upon the credibility of the witness.” Mario Sandoval did not request any additional or different instructions as to Marquez although Marquez’s uncorroborated testimony was the single source of evidence against him. In this Circuit, a defendant is entitled to a special cautionary instruction on the credibility of an accomplice or a government informer if he requests it and the testimony implicating the accused is elic ited solely from the informer or accomplice. United States v. Gonzalez, 491 F.2d 1202 (5th Cir. 1974). See generally, United States v. Lee, 506 F.2d 111 (D.C.Cir. 1974), cert. denied, 421 U.S. 1002, 95 S.Ct. 2403, 44 L.Ed.2d 670 (1975). The rationale behind this requirement is to insure that no verdict based solely on the uncorroborated testimony of a witness who may have good reason to lie is too lightly reached. In this case, there was more than the usual need for a cautionary instruction. First and most important, the portion of Marquez’s testimony which solely supplied the incrimination of Mario was totally uncorroborated by any other witness and was contradicted by Mario’s own testimony and by the only two witnesses present on the day Marquez claims to have spoken with Mario. Second, Marquez was paid an extraordinarily high amount to act as an informer and the laissez-faire employment arrangement opened numerous potentials for abuse. Finally, the possibility that Marquez could be guilty of income tax evasion, which was permitted if not encouraged by the lack of withholding by the government, combined with the other circumstances to cast a dark shadow on the credibility of this witness. If Mario Sandoval had requested an informer-credibility instruction, we would not hesitate" }, { "docid": "20778061", "title": "", "text": "error where the jury was not instructed as to the elements of the offense of conviction). Here, however, there is flQ such glaring omission. The district court correctly (and emphatically) instructed the jury about the government's burden of proof. The court also instructed the jurors at considerable length about their collective responsibility for evaluating the credibility of witnesses. To cap matters, the court gave a specific instruction about accomplice testimony, Viz: You have heard testimony of the code-fendant Rafael del Rosario. This witness has a cooperation agreement with the government. The testimony of Rafael del Rosario was given in order for him to hopefully receive a reduction in sentence on act of his cooperation. In . evaluating testimony of a cooperating witness, you should consider whether that testimony may have been influenced by the government's promises and you should consider that testimony with greater caution than that of ordinary witnesses. Cooperation agreements are lawful. The law only requires that you consider testimony given under those circumstances with greater caution than that of ordinary witnesses. We do not suggest that this instruction is either letter perfect or insusceptible to any improvement. But reading it against the backdrop of the charge as a whole, see United States v. Cintolo, 818 F.2d 980, 1003 (1st Cir.1987), we think that the in struction constitutes a fair statement of the applicable law concerning accomplice testimony. In the absence of a contemporaneous objection, no more was exigible. See United States v. Fernandez, 145 F.3d 59, 62 (1st Cir.1998) (finding no plain error even though district court neglected “to give an unrequested cautionary instruction [and] the government’s case largely depended] on uncorroborated informant or accomplice testimony”); United States v. Martin, 815 F.2d 818, 824 (1st Cir.1987) (finding no plain error when district court failed to give an explicit accomplice instruction, but defendant did not register a contemporaneous objection); see also Fed. R.Crim.P. 52(b) (directing courts, in substance, to ignore unpreserved errors not adversely “affecting substantial rights” of defendants). Notwithstanding these authorities, Pan-iagua posits that more is required here because del Rosario’s testimony was internally inconsistent and largely" }, { "docid": "7595137", "title": "", "text": "No. 3 is based upon the suggested instruction set forth in United States v. Barber, 442 F.2d 517, 528 (3rd Cir. 1971), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1972). This proposed instruction was used as a basis for the model identification instruction for the courts in the District of Columbia, set forth in United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552, 558-559 (1972). The Fourth Circuit in United States v. Holley, 502 F.2d 273 (4th Cir. 1974) , and the Seventh Circuit in United States v. Hodges, 515 F.2d 650 (7th Cir. 1975) , have adopted the Telfaire model instruction or its substantial equivalent in cases where there is no evidence of identification except eyewitness testimony. We have previously considered the Telfaire instruction and have found “much to commend it in those cases in which eyewitness identification is essential to support a conviction.” United States v. Roundtree, 527 F.2d 16, 19 (8th Cir. 1975). However, we do not find today that the failure of the trial court to give appellant’s Proposed Instructions Nos. 3 and 6 constitutes reversible error. The trial court gave a specific instruction on identification that alerted the jury to the crucial nature of that issue in this case, and properly instructed them that they “must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him.” The jury was also given a careful instruction on the credibility of witnesses. The factual situation in this case also differs in important respects with those in Holley and Hodges. In Holley, the sole eyewitness who identified the defendant had earlier failed to select him out of a group of photographs and was finally able to identify him only under very suspect circumstances. In Hodges, the trial judge did not give a special identification instruction at all, although the principal issue in that case appears to have been one of identification. Here, we have a clear and positive identification of appellant by Merrill within several hours after the roadblock incident as well as a" }, { "docid": "12658216", "title": "", "text": "court denied defendant’s requests for addict instructions. The district court did instruct the jury that Ralph Caputo and Brenda Conn were paid informers, that the testimony of an informer who provides evidence “for pay or for immunity from punishment or for personal advantage or vindication must be examined and weighed by the jury with greater care than the testimony of an ordinary witness,” and that the jury must decide whether the informers’ testimony “has been affected by interest or by prejudice against the Defendant.” The jury was also told that Carol Dizeo, Ralph Caputo, Conchita Wynn, Brenda Conn, and John D’Anna, as well as others, were defendant’s accomplices, that an accomplice is not incompetent to testify, but that “the jury should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict a Defendant upon the unsupported testimony of an alleged accomplice unless you believe that unsupported testimony beyond a reasonable doubt.” Thus, of the admitted drug users, or former addicts — Conn, Caputo, Wynn, Rowland and Dizeo — only Dizeo was not mentioned by name in one or both of the special instructions; and her testimony was merely cumulative. In addition to the special instructions, the jury was cautioned generally in passing upon credibility, “to scrutinize the testimony given by each witness, the circumstances under which each has testified, and his intelligence, his or her motive and state of mind, and his or her demeanor and manner while on the witness stand.” Despite the instructions on paid informers, accomplices, and the credibility of witnesses, defendant argues that his requested instructions cautioning the jury in receiving the testimony of drug addicts should have been granted. He places principal reliance on United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566 (1972); United States v. Griffin, 382 F.2d 823 (6 Cir. 1967), and Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321 (1946), which held that a cautionary instruction was required when a paid addict informer’s testimony was the government’s sole evidence on one or more material elements of" }, { "docid": "3056047", "title": "", "text": "555 F.2d 238, 243 (9th Cir. 1977) (“[T]here is no significant distinction between a cautionary instruction on the testimony of an accomplice and a cautionary instruction on one granted immunity. In both instances, the jury is instructed that the testimony ‘be received with caution and weighed with care.’ Consequently, whether we treat the government witnesses as accomplices or as persons granted immunity, or both, is immaterial because the instruction would be the same.”); United States v. Watson, 623 F.2d 1198, 1205 (7th Cir. 1980) (“we believe that the general instruction on credibility, the instruction on accomplice testimony, and defense counsel’s development of the immunity issue in cross-examination and summation adequately alerted the jury to the caution necessary in weighing the testimony of immunized witnesses”). But, in any event, the instruction given most certainly did not amount to plain error. McMillen v. United States, 386 F.2d 29, 35 (1st Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968). Appellants had requested “great care and scrutiny.” The judge instructed that every witness’s credibility was to be considered with “great care,” but that that of Grider was to be considered with “particular care” — in context this was obviously presented as a more exacting standard than “great care.” Appellants were required to object in a timely fashion if variation from the words of the request, certainly not obvious on the face of the matter, were significant, and may not rely upon the fact that a request was submitted to discharge their obligations under Fed.R.Crim.P. 52. Cf. United States v. Lachman, 469 F.2d 1043 (1st Cir.), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1972). 3. Appellants argue that the Government violated their constitutional rights by delaying their indictment for approximately two and one-half years. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752, reh. denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). They argue that the Government knew all of the details of the crimes and the substance of Grider’s testimony in September 1977; that the Government did" }, { "docid": "16943078", "title": "", "text": "the witnesses was error because of Skeans’s and Davis’s admissions that they had used cocaine at or near the time of the events about which they testified. Further, the defendant emphasizes that Skeans admitted to at one time being addicted to cocaine, and therefore relies on United States v. Kinnard, 465 F.2d 566 (D.C.Cir. 1972), which stressed the special need for cautionary instructions concerning the testimony of addict-informants. Rodgers’s reliance on Kinnard in particular and the law governing addict-informant instructions in general is misplaced. The rationale underlying Kinnard and like cases is that addict-informants are subject to powerful temptations that create a serious risk that they will lie on the stand. See Kinnard, 465 F.2d at 572. Thus, under certain circumstances, courts have held that a special instruction should be given concerning the unreliability of their testimony. Id. at 569. See also United States v. Hoppe, 645 F.2d 630, 633 (8th Cir.), cert. denied, 454 U.S. 849, 102 S.Ct. 170, 70 L.Ed.2d 138 (1981); United States v. Wright, 542 F.2d 975, 988-89 (7th Cir.1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977). Rodgers cannot rely on these authorities because, as the First Circuit recently stated in rejecting a similar contention, the instruction requested by the defendant reflected a concern with the witness’s “ability to perceive and relate the truth, not with a deliberate misstatement because of the desire to please the government.” United States v. Rosa, 705 F.2d 1375, 1382 (1st Cir.1983) (affirming district court’s refusal to give cautionary instruction on the testimony of a witness under treatment for a mental condition). In essence, the defendant did not even request the kind of instruction contemplated by the cases on addict-informants. Moreover, any reliability problems with Skeans’s and Davis’s testimony were sufficiently highlighted for the jury through the testimony and the instructions actually given at trial. Defense counsel was given full rein in his cross-examination of these wit nesses concerning their use of cocaine. In addition, the district court did give a special cautionary instruction on Skeans’s and Davis’s testimony, noting that the jury had heard testimony" }, { "docid": "7595136", "title": "", "text": "in this case is the identification of the defendant as the perpetrator of the crime. The defendant has the burden of proving identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty. The trial court also gave the following instruction on credibility of a witness’s testimony: You should carefully study all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness’s ability to observe the matters as to which he has testified and whether each witness is either supported or contradicted by other evidence in the case. Appellant’s Proposed Instruction No. 3 is based upon the suggested instruction set forth in United States v. Barber, 442 F.2d 517, 528 (3rd Cir. 1971), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1972). This proposed instruction was used as a basis for the model identification instruction for the courts in the District of Columbia, set forth in United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552, 558-559 (1972). The Fourth Circuit in United States v. Holley, 502 F.2d 273 (4th Cir. 1974) , and the Seventh Circuit in United States v. Hodges, 515 F.2d 650 (7th Cir. 1975) , have adopted the Telfaire model instruction or its substantial equivalent in cases where there is no evidence of identification except eyewitness testimony. We have previously considered the Telfaire instruction and have found “much to commend it in those cases in which eyewitness identification is essential to support a conviction.” United States v. Roundtree, 527 F.2d 16, 19 (8th Cir. 1975). However, we do not find today that the failure of the trial court to" }, { "docid": "2630091", "title": "", "text": "can be considered, including questions arising from \"some ground of objection [which] surface[s] during the actual giving of the charge”); see also United States v. Eiland, 741 F.2d 738, 742 (5th Cir.1984) (noting that “[a]lthough the jury had been excused, they were told not to begin deliberations until further notice” and describing the district court’s instruction that the jury delay deliberations as \"usual procedure” when objections to the charge are considered after the jury has been excused). . Bernal’s requested instruction number 6 was directed solely at the credibility of “an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication.\" Because there was no evidence that any informer testified in the case, no error could result from the court's refusal of the instruction. Cf. United States v. Santos, 483 F.2d 35 (5th Cir.) (failure to give a requested \"accomplice” instruction is not error unless some person who testified could be considered to be an accomplice), cert. denied, 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973); United States v. Gonzales-Palma, 645 F.2d 844 (10th Cir.) (accomplice instruction is inappropriate when witness is a government agent), cert. denied, 454 U.S. 861, 102 S.Ct. 316, 335, 70 L.Ed.2d 159 (1981); see also Annot., Necessity of, and Prejudicial Effect of Omitting, Cautionary Instruction to Jury as to Accomplice’s Testimony Against Defendant in Federal Criminal Trial, 17 A.L.R. Fed. 249, § 12(a), at 312-14 (1973) (citing and discussing decisions finding no error in refusal of a requested instruction that does not properly state the law or reflect the actual status of a witness). . This accomplice testimony instruction stated: \"The testimony of an alleged accomplice, or of a witness who provides evidence against a defendant as an informer, or for immunity from punishment, or for personal advantage or vindication, must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses. You the jury must decide whether the witness' testimony has been affected by any of those circumstances, or by his or her interest" }, { "docid": "16943077", "title": "", "text": "issue at trial. It is clear that a trial court need not give a venue instruction unless venue is specifically in issue. United States v. Massa, 686 F.2d 526, 530 (7th Cir.1982). By Rodgers’s own analysis, the issue on Count II was whether he was criminally responsible for Tynes’s distribution on August 16, not whether that distribution ultimately occurred in Chicago, Illinois. The issue thus was liability, not venue. Moreover, the court did explicitly instruct the jury on the defendant’s theory of defense as to Count II, and on the law governing vicarious liability in general. The court correctly declined to instruct the jury on venue. B. Drug Usage As an addition to the standard jury instruction on credibility of witnesses, the defendant proposed the following sentence: “In judging the credibility of a witness you may also take into account the effect, if any, of drug usage upon the witnesses’ ability accurately to perceive, remember and recall.” The defendant now asserts that the district court’s refusal to so highlight the effect of drug usage on the witnesses was error because of Skeans’s and Davis’s admissions that they had used cocaine at or near the time of the events about which they testified. Further, the defendant emphasizes that Skeans admitted to at one time being addicted to cocaine, and therefore relies on United States v. Kinnard, 465 F.2d 566 (D.C.Cir. 1972), which stressed the special need for cautionary instructions concerning the testimony of addict-informants. Rodgers’s reliance on Kinnard in particular and the law governing addict-informant instructions in general is misplaced. The rationale underlying Kinnard and like cases is that addict-informants are subject to powerful temptations that create a serious risk that they will lie on the stand. See Kinnard, 465 F.2d at 572. Thus, under certain circumstances, courts have held that a special instruction should be given concerning the unreliability of their testimony. Id. at 569. See also United States v. Hoppe, 645 F.2d 630, 633 (8th Cir.), cert. denied, 454 U.S. 849, 102 S.Ct. 170, 70 L.Ed.2d 138 (1981); United States v. Wright, 542 F.2d 975, 988-89 (7th Cir.1976), cert." }, { "docid": "3056046", "title": "", "text": "credibility to the narrow issue of his motive for singling out appellants; and by not mentioning the grant of immunity in the instruction, the court led the jury to discount defense arguments seeking to discredit Grider on that basis. Parsing of the language used and study of case law does not bear out these contentions. See United States v. Hickey, 596 F.2d 1082, 1091 (1st Cir. 1979) (court’s instruction cautioning jury with respect to informant testimony held adequate where request was one cautioning jury against accomplice testimony); United States v. Rajewski, 526 F.2d 149, 161 (7th Cir. 1975), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976) (the trial judge has discretion to formulate exact language); United States v. Santana, 503 F.2d 710, 716 (2d Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 632, 42 L.Ed.2d 649 (1974), 420 U.S. 963, 1006, 95 S.Ct. 1352, 1450, 43 L.Ed.2d 439 (1975) (“no talismanic formula has been prescribed as a caution to be given to a jury regarding accomplice testimony”); United States v. Morgan, 555 F.2d 238, 243 (9th Cir. 1977) (“[T]here is no significant distinction between a cautionary instruction on the testimony of an accomplice and a cautionary instruction on one granted immunity. In both instances, the jury is instructed that the testimony ‘be received with caution and weighed with care.’ Consequently, whether we treat the government witnesses as accomplices or as persons granted immunity, or both, is immaterial because the instruction would be the same.”); United States v. Watson, 623 F.2d 1198, 1205 (7th Cir. 1980) (“we believe that the general instruction on credibility, the instruction on accomplice testimony, and defense counsel’s development of the immunity issue in cross-examination and summation adequately alerted the jury to the caution necessary in weighing the testimony of immunized witnesses”). But, in any event, the instruction given most certainly did not amount to plain error. McMillen v. United States, 386 F.2d 29, 35 (1st Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968). Appellants had requested “great care and scrutiny.” The judge instructed that every witness’s" }, { "docid": "23443973", "title": "", "text": "aptly, his lack of recollection — of the photographic identification. Appellant also objects to the court’s having instructed the jury that it could “consider” Perkins’ photographic identification and sketch without having given the instruction requested by the defendant as to the dangers inherent in eyewitness identification. In United States v. Fernandez, 456 F.2d 638, 643-44 (2 Cir. 1972), we said: While a defendant is not entitled to a reading of all that was said about the dangers of misidentification in United States v. Wade, supra, 388 U.S. [218] at 228-236, 87 S.Ct. at 1926, 18 L.Ed.2d 1149, and Simmons v. United States, supra, 390 U.S. [377] at 383-384, 88 S.Ct. at 967, 19 L.Ed.2d 1247, we would think it reasonable that a properly drafted instruction, drawing particularly on Mr. Justice Harlan's language in Simmons, should be given if requested. Whether failure to do so would constitute reversible error would depend upon the circumstances. The reversal in that case rested on other grounds. Defendant has cited no decision holding that the giving of such a charge is mandatory, and a number have refused to do so. United States v. Evans, 484 F.2d 1178, 1187-88 (2 Cir. 1973); United States v. Gentile, 530 F.2d 461, 469 (2 Cir.), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); United States v. Barber, 442 F.2d 517, 525-26 (3 Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971) (noting “formidable precedential authority” that cautionary instruction is not required). This would be an exceedingly inappropriate case for seeking to make new law on this subject. The identifications were only a part of the case that Marchand was the supplier, a less important part than counsel would have us believe, and the circumstances were such that a cautionary instruction might have led the jury away from the truth rather than toward it. (2) Alleged errors concerning Roy’s grand jury testimony. Defendant complains in regard to the Government’s summation and the charge with respect to Roy’s grand jury testimony. The complaints about the summation relate to statements that Roy “gave sworn" } ]

[ { "docid": "22683402", "title": "", "text": "now affirm. II McCleskey’s first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment. He argues that race has infected the administration of Georgia’s statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers. As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. In its broadest form, McCleskey’s claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application. We agree with the Court of Appeals, and every other court that has considered such a challenge, that this claim must fail. A Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving “the existence of purposeful discrimination.” Whitus v. Georgia, 385 U. S. 545, 550 (1967). A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination “had a discriminatory effect” on him. Wayte v. United States, 470 U. S. 598, 608 (1985). Thus, to prevail under the Equal Protection Clause, McCles-key must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus study. McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey’s claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant" } ]

[ { "docid": "2109245", "title": "", "text": "federal death penalty.' The First Circuit has held that: A selective prosecution claim fails unless the defendant establishes that his prosecution results from “intentional and purposeful discrimination.” United States v. Bassford, 812 F.2d 16, 19 (1st Cir.), cert. denied, 481 U.S. 1022, 107 S.Ct. 1909, 95 L.Ed.2d 514 (1987). This requires that the defendant demonstrate, “at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or based in bad faith, i.e., based upon such impermissible considerations as race....” Id. (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). Lewis, 40 F.3d at 1345; accord McCleskey, 481 U.S. at 292, 107 S.Ct. 1756 (“[A] defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination.”) (internal quotation marks and citation omitted). While Sampson’s Fifth Amendment claim relies on the alleged violation of the rights of others, he fails to identify any particular person for whom the federal government sought the death penalty while not seeking that sanction for another similarly situated individual. Sampson’s statistical evidence is insufficient to establish the necessary discriminatory effect. See Bin Laden, 126 F.Supp.2d at 261-62. It is also not adequate to prove purposeful discrimination, la-McCleskey, the Supreme Court rejected the use of statistics to demonstrate purposeful discrimination in the context of a challenge to the death penalty. McCleskey, 481 U.S. at 293-98, 107 S.Ct. 1756. As the court wrote in Bin Laden, 126 F.Supp.2d at 261, “[a]t its core, [ ] McCleskey stands for the notion that, by themselves, systemic statistics cannot prove racially discriminatory intent in support of an equal protection claim by a particular capital defendant.” Sampson attempts to distinguish McCleskey, arguing that unlike the large number of decision-makers at issue in McCleskey, in this case all of the authorization decisions at issue were made by the Attorney General. The- defendant further notes that a" }, { "docid": "10519673", "title": "", "text": "race has played an impermissible role in the charging decision, Mr. Glover asserts that “across the United States, federal jurisdiction eligible death penalty cases [of similarly situated white defendants] have been left in state courts.” Mr. Glover’s Reply Brief (Doc. # 303) at 6. He presents, inter alia, evidence that in Nebraska, Todd Cook, a white male, was “handled through the state system in the January 25, 1995, robbery/murder at a convenience store” and evidence that in Missouri, Lawrence McCollum, a white male, committed a drug-related murder at an adult entertainment business and was prosecuted in state court. Id. Mr. Glover also claims that race has played an impermissible role in the Attorney General’s decisions to authorize prosecution under the death penalty. As to this claim, the court finds that Mr. Glover has presented statistical data, generated by the Department of Justice, showing that from January 27, 1995 to August 10, 1998, the Attorney General authorized a greater number of black defendants for death-penalty prosecution than white defendants. The court finds that, based upon this evidence, Mr. Glover is entitled to additional discovery, and certainly should be provided vrith statistical information incorporating the last six months of data. Accordingly, the court finds that Mr. Glover’s discovery requests should be granted. The government is given until March 17, 1999, to comply with the discovery requests set forth in Mr. Glover’s Motion to Bar the Death Penalty as Racially Discriminatory and Memorandum in Support (Doc. # 218) at 26-27. Mr. Glover is given until March 31, 1999, to submit a brief to the court addressing the significance of the discovery obtained. The government is given until April 9, 1999, to file a response. Mr. Glover is given until April 19,1999, to file a reply. Mr. Glover’s request for an evidentiary hearing, and his request to dismiss the prosecution’s request for the death penalty, are denied as premature. VI. Motion for Second Stage Procedures (Doc. # 236). In the event that Mr. Glover is convicted of a capital offense, Mr. Glover requests that the court use certain procedures during the penalty phase of" }, { "docid": "4952087", "title": "", "text": "a statute of the United States, or to interfere with the institutional processes of the United States government as a single entity. As the government notes, “to the extent that Section 3593 contemplates certification by a particular individual attorney, the statute simply requires the attorney of record for the government to certify that it is the institutional belief of the government, by virtue of its internal decision-making process, that it is appropriate to seek the death penalty.” Opp. at 87 (citing Jones v. United States, 119 S.Ct. at 2096 (recognizing that under the FDPA, it is “the government” that has the discretion to seek the death penalty)). For the reasons stated, Defendant’s Motion to Strike Notice of Intent to Seek the Death Penalty for Violation of 18 U.S.C. § 3593 And For Discovery and Issuance of Subpoenas is denied. B. Constitutional Violation Cooper argues he was selected for prosecution under the FDPA “for racially discriminatory purposes.” Mot. at 2. Cooper is a black male; the victims of the alleged capital crimes are a black male, a white female, and a white male. The incident took place in Georgetown, which, according to Cooper, is a predominately white neighborhood. In addition to seeking a dismissal of the notice of intent as violating the Constitution, Cooper, recognizing that he has insufficient evidence to support his motion, seeks discovery and a hearing so that he may obtain evidence to support his motion to dismiss the notice of intent. To prevail on a claim for selective prosecution, a defendant must show that the decision to prosecute had both a discriminatory effect and a discriminatory intent. See United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). A discriminatory intent is demonstrated by the existence of racial animus. The defendant must show that “decisionmakers in his case acted with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (emphasis in original). A discriminatory effect is demonstrated by establishing that “similarly situated individuals of a different race were not prosecuted.” Id. at 465, 116 S.Ct." }, { "docid": "4952092", "title": "", "text": "not prosecutable under a federal capital statute.” Govt.Opp. at 103 n. 48. Second, of the homicides that were eligible for federal capital prosecution, Cooper fails to state how many times the Attorney General declined to seek the death penalty. Most important is the fact that Cooper fails to state how this alleged lack of prosecution for supposedly capital crimes in 1997 has anything to do with the Attorney General’s decision to seek the death penalty against him. Cooper can not demonstrate a “colorable claim” for selective prosecution with random, incomplete statistics from a single year which, aside from failing to show colorable evidence of racial disparity, have nothing to do with the Attorney General’s decision to seek the death penalty in Cooper’s individual case. See generally, McCleskey 481 U.S. at 297, 107 S.Ct. 1756. Although in Bradley, 880 F.Supp. 271 (M.D.Pa.1994), the district court permitted limited discovery concerning defendant’s claim of racial disparity, numerous courts subsequently considering the issue have denied such defense requests. See, e.g., DesAnges, 921 F.Supp. at 358; United States v. Roman, 931 F.Supp. 960, 967 (D.R.I.1996); Davis, 904 F.Supp. at 560; Walker, 910 F.Supp. at 859-60. Cooper’s motion is denied. V. Conclusion For the reasons stated, it is hereby ORDERED that defendant’s Motion to Compel Disclosure of the United States Attorney’s Initial Recommendation to the Attorney General Regarding Decision to Seek the Death Penalty is denied; and it is FURTHER ORDERED that Defendant’s Motion to Strike Notice of Intent to Seek the Death Penalty for a Violation of 18 U.S.C. § 3593 and for Discovery and Issuance of Subpoenas is denied; and it is FURTHER ORDERED that Defendant’s Motion to Strike Notice of Intent to Seek the Death Penalty as Violative of the Fifth and Eighth Amendments and for Discovery and Issuance of Subpoenas is denied; and it is FURTHER ORDERED that defendant’s Motion to Preclude the Death Penalty; to Dismiss the Government’s Notice of Intent to Seek the Death Penalty and to Strike Aggravating Factors is denied in part; and it is FURTHER ORDERED that oral argument on the defendant’s Motion for an Evidentiary Hearing" }, { "docid": "2109244", "title": "", "text": "context of a Fifth Amendment selective prosecution claim, the Supreme Court has recently held that “a defendant who seeks discovery ... must show some evidence of both discriminatory effect and discriminatory intent,” and that “raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants.” United States v. Bass, 536 U.S. 862, 863, 864, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002). This court concludes that a comparable showing is required to obtain discovery concerning Sampson’s related Eighth Amendment claim. That showing has not been made. Thus, Sampson’s claim that the FDPA operates in a manner that is arbitrary and capricious must be decided on the current record. For the reasons described previously, Sampson’s three related arguments that the FDPA operates in a way that is arbitrary and capricious and is, therefore, cruel and unusual in violation of the Eighth Amendment are not, individually or cumulatively, convincing. See Bin Laden, 126 F.Supp.2d. at 263. Nor has Sampson demonstrated a violation of the Fifth Amendment based on racial disparities in the administration of the federal death penalty.' The First Circuit has held that: A selective prosecution claim fails unless the defendant establishes that his prosecution results from “intentional and purposeful discrimination.” United States v. Bassford, 812 F.2d 16, 19 (1st Cir.), cert. denied, 481 U.S. 1022, 107 S.Ct. 1909, 95 L.Ed.2d 514 (1987). This requires that the defendant demonstrate, “at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or based in bad faith, i.e., based upon such impermissible considerations as race....” Id. (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). Lewis, 40 F.3d at 1345; accord McCleskey, 481 U.S. at 292, 107 S.Ct. 1756 (“[A] defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination.”) (internal quotation marks and citation omitted). While Sampson’s Fifth Amendment claim relies" }, { "docid": "10519672", "title": "", "text": "of a bill of particulars. In this motion, Mr. Glover also requests a pre-trial evidentiary hearing. In Mr. Glover’s reply brief, he clarifies that he is seeking such a hearing to address the admissibility of unadjudicated offenses that will be presented by the government to establish certain non-statutory aggrava-tors. The court denies this request as premature. V. Motion to Bar the Death Penalty as Racially Discriminatory (Doc. # 218). Mr. Glover challenges his death penalty prosecution on grounds that it is arbitrary and capricious in violation of the Eighth Amendment, and under the equal protection component of the Fifth Amendment’s Due Process Clause. The court has carefully considered the arguments and exhibits submitted by counsel, and concludes that Mr. Glover has met the threshold showing required under United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), by producing “some evidence that similarly situated defendants of other races could have been prosecuted [in federal court], but were not.” Id. at 469, 116 S.Ct. 1480. With respect to Mr. Glover’s claim that race has played an impermissible role in the charging decision, Mr. Glover asserts that “across the United States, federal jurisdiction eligible death penalty cases [of similarly situated white defendants] have been left in state courts.” Mr. Glover’s Reply Brief (Doc. # 303) at 6. He presents, inter alia, evidence that in Nebraska, Todd Cook, a white male, was “handled through the state system in the January 25, 1995, robbery/murder at a convenience store” and evidence that in Missouri, Lawrence McCollum, a white male, committed a drug-related murder at an adult entertainment business and was prosecuted in state court. Id. Mr. Glover also claims that race has played an impermissible role in the Attorney General’s decisions to authorize prosecution under the death penalty. As to this claim, the court finds that Mr. Glover has presented statistical data, generated by the Department of Justice, showing that from January 27, 1995 to August 10, 1998, the Attorney General authorized a greater number of black defendants for death-penalty prosecution than white defendants. The court finds that, based upon this" }, { "docid": "6083434", "title": "", "text": "MEMORANDUM AND ORDER BELOT, District Judge. Before the court are the following: (1) Defendant Nguyen’s motion for pretrial production of statements of individuals not to be called as witnesses (Doc. 63); (2) omnibus motion to strike notice of intent to seek the death penalty (Docs. 64, 65); (3) Motion for adoption of jury selection procedures (Docs. 66, 67); (4) motion for discovery and inspection of information and evidence in aggravation (Doc. 68); (5) motion for bill of particulars with respect to notice of intent to seek the death penalty (Docs. 69, 70); (6) motion for discovery of evidence in mitigation (Docs. 71, 72); (7) motion for immediate production of Government’s witness list (Docs. 73, 74); (8) motion to compel disclosure of United States Attorney’s initial recommendation regarding intent to seek the death penalty (Docs. 75, 76); (9) supplemental authority and argument RE: brief in support of motion to strike the death notice (Doc. 106); and (10) Government’s responses to Nguyen’s motions (Docs. 90-97). INDEX BACKGROUND...............................................................1531 DISCUSSION.................................................................1531 SUBSTANTIVE DEATH PENALTY CHALLENGES.............................1531 I. Overview of the Death Penalty Statute, 18 U.S.C. § 3591, Et Seq..............1532 II. Constitutionality of the Statutory Definition of the Capital Offense............1532 III. Constitutionality of Particular Statutory Aggravating Factors.................1533 A. The “Especially Heinous, Cruel, or Depraved Manner” Aggravating Factor...........................................................1533 1. Facial Unconstitutionality........................................1533 2. Particularized Unconstitutionality .................................1534 B. The “Pecuniary Gain” Aggravating Factor..............................1534 IV. Constitutionality of Non-Statutory Aggravating Factors .....................1536 A. Statutory Authority for Non-Statutory Aggravating Factors..............1536 B. Non-Delegation Doctrine, Proportionality Review and Ex Post Facto Challenges to Government’s Identification of Non-Statutory Aggravating Factors......................................................1536 1. Non-Delegation Doctrine.........................................1536 2. Proportionality Review...........................................1537 3. Ex Post Facto Clause............................................1537 4. Eighth Amendment..............................................1538 V. Constitutionality and Propriety of Specially Alleged Non-Statutory Aggravating Factors..........................................................1538 A. The “Mental State” Factor...........................................1538 1. Defendant’s Pre-McCullah Contentions............................1538 2. Defendant’s Post-McCullah Contentions (Doc. 106).....■.............1539 B. “Lack of Remorse” Factor...........................................1541 C. “Continuing Danger” Factor..........................................1542 D. ‘Victim Impact Evidence” Factor.....................................1542 E. “Low Potential for Rehabilitation” Factor..............................1543 VI. Arbitrary Selection for Death Penalty Prosecution ..........................1544 VIL Fifth Amendment Indictment Clause......................................1545 VIII. Specificity of Notice of Intent to Seek the Death Penalty.....................1545 IX. Evidentiary Standard for the Sentencing Hearing...........................1546 X. Mitigating Evidence.....................'................................1547 XI. Cruel and" }, { "docid": "15583941", "title": "", "text": "(1987); Adamson v. Ricketts, 865 F.2d 1011, 1022-23 (9th Cir.1988) (en banc), abrogated on other grounds, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In order to prevail on a selective prosecution claim, a defendant must show that the prosecutorial policy both had a discriminatory effect and was motivated by a discriminatory purpose. Armstrong, 517 U.S. at 465, 116 S.Ct. 1480; see also McCleskey, 481 U.S. at 292, 107 S.Ct. 1756 (“[T]o prevail under the Equal Protection Clause, [a defendant] must prove that the decisionmakers in his case acted with discriminatory purpose.”). To establish a discriminatory effect in a race discrimination case, a defendant must prove that similarly situated individuals of a different race, or whose victims were of a different race, were not prosecuted. Armstrong, 517 U.S. at 467, 116 S.Ct. 1480. We reject the government’s contention that the Supreme Court rejected similar statistical evidence in McCleskey v. Kemp, and that Belmontes’ statistics are therefore “insufficient as a matter of law.” The factual showing made by McCleskey was materially different from the showing made in this case. In McCleskey, the Supreme Court reviewed the claim of a Georgia prisoner who alleged that the Georgia capital sentencing statute violated the Equal Protection Clause because it was administered in a racially discriminatory manner. 481 U.S. at 286, 107 S.Ct. 1756. In support of his claim, McCleskey offered a sophisticated statistical study that demonstrated that Georgia defendants whose victims were white were 4.3 times as likely to receive a death sentence as those whose victims were black. Id. The Court denied his claim, holding that McCleskejfs statewide statistics did not meet his burden of proving that the imposition of the death penalty in his particular case was the product of purposeful discrimination. Id. at 293, 107 S.Ct. 1756. We have similarly refused to allow petitioners in California and Arizona to submit statistics that demonstrated racial disparities in the imposition of the death penalty statewide as evidence of discrimination in an individual case. See" }, { "docid": "10519665", "title": "", "text": "arbitrarily imposed death sentences, but we certainly did not hold that comparative review was constitutionally required. Pulley, 465 U.S. at 50, 104 S.Ct. 871 (footnote omitted, emphasis added). Additionally, as noted in Nguyen, federal district courts addressing 21 U.S.C. § 848 (also a weighing statute allowing consideration of non-statutory factors) have unanimously held there is no requirement of proportionality review. Nguyen, 928 F.Supp. at 1537 (citing United States v. Walker, 910 F.Supp. 837, 851-52 (N.D.N.Y.1995); United States v. Bradley, 880 F.Supp. 271, 284 (M.D.Pa.1994); United States v. Pitera, 795 F.Supp. 546, 559-60 (E.D.N.Y.1992); United States v. Pretlow, 779 F.Supp. 758, 768-69 (D.N.J.1991); United States v. Cooper, 754 F.Supp. 617, 626 (N.D.Ill.1990)). Based on the foregoing, Mr. Glover’s motion to strike the non-statutory aggravating factors for lack of 'proportionality review is denied. F. Cruel and Unusual Punishment. Mr. Glover next argues that under all circumstances, the death penalty is cruel and unusual punishment prohibited by the Eighth Amendment. Such argument is foreclosed by Supreme Court decision. See McCleskey v. Kemp, 481 U.S. 279, 300-303, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). See also United States v. McVeigh, 944 F.Supp. 1478, 1484 (D.Colo.1996) (holding such a claim foreclosed by Supreme Court decisions, and citing McCleskey). Thus, Mr. Glover’s motion to strike the nonstatu-tory aggravators on this ground is denied. III. Motion to Strike the Constitutionally Deficient Notice of Intent to Seek the Death Penalty (Doc. # 215). Although the Federal Death Penalty Act does not address the scope of information required to be provided by the government in the notice, the notice “must nonetheless survive[] constitutional scrutiny.... At a minimum, due process requires a defendant to receive notice of aggravating factors to enable him to respond and prepare his case in rebuttal.” Kaczynski, 1997 WL 716487 at 19-20 (noting that although the statute was not explicit, the court had inherent authority to require procedure adherent to constitutional due process). As to each of the aggravators the government intends to prove in Mr. Glover’s case, the government’s death penalty notice (Doc. # 177) provides only conclusory, bare allegations, and fails to inform Mr." }, { "docid": "3684117", "title": "", "text": "v. Allen, 442 U.S. 140, 155, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) (“As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.”); see also Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (citing cases). Because there is no Supreme Court precedent directly on point and because “death is ... different,” Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we will assume ar-guendo that Sampson has standing to pursue these arguments. He nonetheless fails to prove the unconstitutionality of the FDPA. 1. Race-and-Geography-Related Claims. We take first Sampson’s claims that the FDPA is unconstitutional because the death penalty is sought based on the race of the defendant and victim and on the locale in which the defendant is charged. Sampson’s race-based claims implicate the Fifth and Eighth Amendments. His geography-related claim implicates the Eighth Amendment. Sampson’s challenges are based primarily on a 2000 DOJ study of the administration of the federal death penalty from 1988 to 2000, and on a 2001 supplemental report. He reads the studies as demonstrating a pattern of discrimination against minority defendants and against defendants in the South. For example, he notes that over 70% of federal defendants for whom the death penalty was sought were nonwhites. Similarly, between 1995 and 2000, only slightly more than half of the districts in the federal system submitted a case to the Attorney General with a recommendation for capital prosecution. Sampson also cites evidence of a white-victim effect, including one study showing that the death penalty authorization rate is 37% in white-victim cases, but only 21% in minority-victim cases. Bare statistical discrepancies are insufficient to prove a Fifth Amendment violation with respect to the implementation of a statute. This principle is firmly established by McCleskey. 481 U.S. at 292,107 S.Ct. 1756 (stating that “to prevail under the Equal Protection Clause, [a defendant] must prove that the decisionmak-ers in" }, { "docid": "23474356", "title": "", "text": "for someone whose victim was nonwhite.” Further, a male between the ages of 25 to 34 stands a significantly greater chance than other defendants of receiving the sentence of death. Based on these preliminary findings, Harris moved for an order compelling the State to produce substantial data from the California courts, including age, race and gender data of victim and defendant in each homicide prosecution in the State of California since 1977, and all transcripts of all California penalty trials relating to “offenses committed on or after” 1977. To be entitled to an evidentiary hearing, Harris must demonstrate that (1) “he has alleged facts which, if proved, would entitle him to relief, and (2) an evidentiary hearing is required to establish the truth of his allegations.” Harris I, 692 F.2d at 1197 (citing Pierce, 572 F.2d at 1340-41); Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963). The district court did not grant Harris’ motion for discovery or request for an evidentiary hearing because it held that, even assuming the truth of Harris’ factual statistical allegations, his discrimination claims failed. An evidentiary hearing would be necessary to hear any evidence that a particular defendant was discriminated against because of his race, age, or gender. But as we discuss in the next section of this opinion, general statistical studies of the kind offered here do not prove discrimination. Moreover, it is not necessary to conduct a full evidentiary hearing as to studies which do nothing more than show an unexplainable disparity. C. Applicability of McCleskey v. Kemp Last term, the Supreme Court in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), considered the use of statistical studies to prove discriminatory treatment. Because Harris’ discrimination claims are quite similar to the defendant’s contentions in McCleskey, we discuss the Supreme Court’s decision in some detail. In McCleskey, the defendant contended the Georgia capital sentencing process was administered in a racially discriminatory manner in violation of the eighth and fourteenth amendments to the United States Constitution. Id. 107 S.Ct. at 1763. In support" }, { "docid": "10519666", "title": "", "text": "1756, 95 L.Ed.2d 262 (1987). See also United States v. McVeigh, 944 F.Supp. 1478, 1484 (D.Colo.1996) (holding such a claim foreclosed by Supreme Court decisions, and citing McCleskey). Thus, Mr. Glover’s motion to strike the nonstatu-tory aggravators on this ground is denied. III. Motion to Strike the Constitutionally Deficient Notice of Intent to Seek the Death Penalty (Doc. # 215). Although the Federal Death Penalty Act does not address the scope of information required to be provided by the government in the notice, the notice “must nonetheless survive[] constitutional scrutiny.... At a minimum, due process requires a defendant to receive notice of aggravating factors to enable him to respond and prepare his case in rebuttal.” Kaczynski, 1997 WL 716487 at 19-20 (noting that although the statute was not explicit, the court had inherent authority to require procedure adherent to constitutional due process). As to each of the aggravators the government intends to prove in Mr. Glover’s case, the government’s death penalty notice (Doc. # 177) provides only conclusory, bare allegations, and fails to inform Mr. Glover as to how or why it applies to his particular case, and the supporting facts. The court finds that its rulings with respect to Mr. Glover’s Motion to Strike Specific “Aggravators” (Doc. #202) have adequately addressed this motion as well. Accordingly, the court finds that Mr. Glover’s Motion to Strike the Constitutionally Deficient Notice of Intent to Seek the Death Penalty (Doc. # 215) should be and hereby is denied with respect to Mr. Glo ver’s request to strike the statutory and non-statutory aggravators. During oral argument on this motion, defense counsel asserted that the government’s failure to provide sufficient notice by the agreed-upon deadline of November 2, 1998 warrants striking the ag-gravators. The court, however, observes that the notice must only be served “a reasonable time before the trial,” see § 3593(a). Defense counsel have failed to demonstrate any actual prejudice to Mr. Glover arising from any delay after November 2, 1998 in receiving notice of the aggravating factors. The court therefore rejects Mr. Glover’s argument that the aggravating factors should be stricken" }, { "docid": "10008609", "title": "", "text": "517 U.S. at 464, 116 S.Ct. 1480; Wayte, 470 U.S. at 608, 105 S.Ct. 1524. Likewise, the decision to charge the death penalty cannot rest on criteria that offend the Constitution. McCleskey v. Kemp, 481 U.S. 279, 293, 107 S.Ct. 1756 (1987); Adamson v. Ricketts, 865 F.2d 1011, 1022-23 (9th Cir.1988) (en banc), abrogated on other grounds, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In order to prevail on a selective prosecution claim, a defendant must show that the prosecutorial policy both had a discriminatory effect and was motivated by a discriminatory purpose. Armstrong, 517 U.S. at 465, 116 S.Ct. 1480; see also McCleskey, 481 U.S. at 292, 107 S.Ct. 1756 (“[T]o prevail under the Equal Protection Clause, [a defendant] must prove that the decisionmakers in his case acted with discriminatory purpose.”). To establish a discriminatory effect in a race discrimination case, a defendant must prove that similarly situated individuals of a different race, or whose victims were of a different race, were not prosecuted. Armstrong, 517 U.S. at 467, 116 S.Ct. 1480. We reject the government’s contention that the Supreme .Court rejected similar statistical evidence in McCleskey v. Kemp, and that Belmontes’ statistics are therefore “insufficient as a matter of law.” The factual showing made by McCleskey was materially different from the showing made in this case. In McCleskey, the Supreme Court reviewed the claim of a Georgia prisoner who alleged that the Georgia capital sentencing statute violated the Equal Protection Clause because it was administered in a racially discriminatory manner. 481 U.S. at 286, 107 S.Ct. 1756. In support of his claim, McCleskey offered a sophisticated statistical study that demonstrated that Georgia defendants whose victims were white were 4.3 times as likely to receive a death sentence as those whose victims were black. Id. The Court denied his claim, holding that McCleskey’s statewide statistics did not meet his burden of proving that the imposition of the death penalty in his particular case was the product of purposeful discrimination." }, { "docid": "2109232", "title": "", "text": "on the crime. See A-37 to A-72. They disclose nothing about the characteristics of the criminal except his race. Id. By ignoring the “individual differences” among criminals, Sampson invites the court to invalidate the FDPA because it does not produce “a false consistency” in the imposition of the death penalty. Eddings, 455 U.S. at 112, 102 S.Ct. 869. This is not permissible or appropriate. Sampson could prevail in his effort to avoid being subject to the death penalty if he proved that he is being selectively subject to prosecution based on his race or for some other constitutionally impermissible reason. See McCleskey, 481 U.S. at 292 n. 8, 107 S.Ct. 1756; United States v. Lewis, 40 F.3d 1325, 1345 (1st Cir.1994); United States v. Bin Laden, 126 F.Supp.2d 256, 260-61 (S.D.N.Y.2000). Sampson, however, has not asserted such a Fifth Amendment claim. See June 11, 2003 Tr. at 75; Def.’s Reply at 9-10. Nor is the evidence sufficient to establish a Fifth Amendment selective prosecution claim because Sampson has failed to identify a similarly situated individual for whom the federal government is not seeking the death penalty. See Bin Laden, 126 F.Supp.2d at 260-63. Rather, based on the evidence in the DOJ Study, Sampson contends that the federal death penalty system treats cases differently based on three factors: the race of the defendant, the race of the victim, and the geographic location of the prosecution. Specifically, the defendant argues that federal prosecutors are more likely to seek the death penalty for black defendants than white defendants; are more likely to seek the death penalty in cases where the victim is white than in cases where the victim is black; and are more likely to seek the death penalty in Southern “death belt” states than in Northern states that do not have a culture of imposing the death penalty. All three of these factors implicate the Eighth Amendment. None of them relate to the circumstances of the crime or the characteristics of the criminal, which are the factors that must be weighed in determining whether the death penalty is justified. If the" }, { "docid": "3684118", "title": "", "text": "Amendment. Sampson’s challenges are based primarily on a 2000 DOJ study of the administration of the federal death penalty from 1988 to 2000, and on a 2001 supplemental report. He reads the studies as demonstrating a pattern of discrimination against minority defendants and against defendants in the South. For example, he notes that over 70% of federal defendants for whom the death penalty was sought were nonwhites. Similarly, between 1995 and 2000, only slightly more than half of the districts in the federal system submitted a case to the Attorney General with a recommendation for capital prosecution. Sampson also cites evidence of a white-victim effect, including one study showing that the death penalty authorization rate is 37% in white-victim cases, but only 21% in minority-victim cases. Bare statistical discrepancies are insufficient to prove a Fifth Amendment violation with respect to the implementation of a statute. This principle is firmly established by McCleskey. 481 U.S. at 292,107 S.Ct. 1756 (stating that “to prevail under the Equal Protection Clause, [a defendant] must prove that the decisionmak-ers in his case acted with discriminatory purpose”). It applies here: because Sampson has presented no specific evidence of purposeful discrimination either against himself or against those southern and minority defendants upon whom he purports to base his claim, his Fifth Amendment challenge fails. By like token, Sampson’s Eighth Amendment claims cannot succeed. The McCleskey Court, in rejecting an Eighth Amendment claim based on a statistical study indicating race-based discrepancies in capital sentencing, stated: Apparent disparities in sentencing are an inevitable part of our criminal justice system.... [0]ur consistent rule has been that constitutional guarantees are met when “the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible.” Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. 481 U.S. at 312-13, 107 S.Ct. 1756 (second alteration in original) (citation omitted) (quoting Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965)). The statistics submitted by Sampson are no more" }, { "docid": "4952088", "title": "", "text": "a white female, and a white male. The incident took place in Georgetown, which, according to Cooper, is a predominately white neighborhood. In addition to seeking a dismissal of the notice of intent as violating the Constitution, Cooper, recognizing that he has insufficient evidence to support his motion, seeks discovery and a hearing so that he may obtain evidence to support his motion to dismiss the notice of intent. To prevail on a claim for selective prosecution, a defendant must show that the decision to prosecute had both a discriminatory effect and a discriminatory intent. See United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). A discriminatory intent is demonstrated by the existence of racial animus. The defendant must show that “decisionmakers in his case acted with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (emphasis in original). A discriminatory effect is demonstrated by establishing that “similarly situated individuals of a different race were not prosecuted.” Id. at 465, 116 S.Ct. 1480. If the defendant seeks to obtain discovery to prove a claim for selective prosecution, he or she must first establish a “colorable” claim of selective prosecution. See Attorney General of the United States v. Irish People, Inc., 684 F.2d 928, 948 (D.C.Cir.1982); United States v. Diggs, 613 F.2d 988, 1003-04 (D.C.Cir.1979). In addition, the “evidence [must be] specific to [the defendant’s] own case that would support an inference that racial considerations played a part” in the prosecutor’s decision to seek the death penalty. McCleskey, 481 U.S. at 292-93, 107 S.Ct. 1756. In support of his motion, Cooper submits the following evidence. He states that in 1997, the year in which the alleged capital offenses occurred, there were 301 homicides in the District of Columbia. Of that number, five homicides, or 1.6% of the total homicides, occurred in the Second Police District (the site of the Georgetown Starbucks). According to Cooper, the “bulk of the non-minority population of the District [of Columbia] lives in the 2nd Police District.” Mot. at 4. From this, Cooper concludes" }, { "docid": "11293746", "title": "", "text": "purpose and, therefore, he is entitled to relief on this claim. First, Loza references statistical data included in his petition for post-conviction relief in state court that the death penalty is disproportionately imposed in Butler County, Ohio on defendants who are racial minorities and kill white victims. However, such general statistical evidence is insufficient to establish discriminatory purpose. McCleskey, 481 U.S. at 286, 292-97, 107 S.Ct. 1756 (holding that a study indicating that black defendants and defendants charged with killing white people are more likely to receive the death penalty was insufficient to support an inference that the decisionmakers in petitioner’s case acted with discriminatory purpose); see also Keene v. Mitchell, 525 F.3d 461, 464 (6th Cir.2008) (rejecting petitioner’s argument based on statistical evidence of racial disparities in capital indictments in the county in which petitioner was tried because the petitioner offered no evidence demonstrating purposeful discrimination in his own case); Coleman v. Mitchell, 268 F.3d 417, 441-42 (6th Cir.2001) (acknowledging statistical evidence of “extremely troubling” racial disparities in the imposition of the death penalty in Ohio but holding that under McCleskey, this evidence is not enough to demonstrate selective prosecution). Loza also argues — based on evidence from the evidentiary hearing in district court, which we do not consider — that the decisionmakers in his case, specifically Enable, were motivated by a discriminatory purpose. In Armstrong, the Supreme Court expressly rejected the argument that when a defendant demonstrates discriminatory purpose, he need not establish discriminatory effect to succeed on a selective prosecution claim. Armstrong, 517 U.S. at 467-68, 116 S.Ct. 1480; see also Cornwell v. Bradshaw, 559 F.3d 398, 411 (6th Cir.2009) (emphasizing that under McCleskey and Armstrong, a defendant must prove both discriminatory purpose and effect). Both showings are required. The Ohio Court of Appeals reasonably concluded that Loza’s failure to show discriminatory effect meant that he could not succeed on his claim. Loza is not entitled to habeas relief on this ground. IX. Finally, Loza argues that he is entitled to habeas relief because officials failed to inform him after his arrest that he had a right" }, { "docid": "17959669", "title": "", "text": "v. Kemp, 481 U.S. 279, 293, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Adamson v. Ricketts, 865 F.2d 1011, 1022-23 (9th Cir.1988) (en banc), abrogated on other grounds, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In order to prevail on a selective prosecution claim, a defendant must show that the prosecutorial policy both had a discriminatory effect and was motivated by a discriminatory purpose. Armstrong, 517 U.S. at 465, 116 S.Ct. 1480; see also McCleskey, 481 U.S. at 292, 107 S.Ct. 1756(“[T]o prevail under the Equal Protection Clause, [a defendant] must prove that the decisionmakers in his case acted with discriminatory purpose.”). To establish a discriminatory effect in a race discrimination case, a defendant must prove that similarly situated individuals of a different race, or whose victims were of a different race, were not prosecuted. Armstrong, 517 U.S. at 467, 116 S.Ct. 1480. We reject the government’s contention that the Supreme Court rejected similar statistical evidence in McCleskey v. Kemp, and that Belmontes’ statistics are therefore “insufficient as a matter of law.” The factual showing made by McCleskey was materially different from the showing made in this case. In McCleskey, the Supreme Court reviewed the claim of a Georgia prisoner who alleged that the Georgia capital sentencing statute violated the Equal Protection Clause because it was administered in a racially discriminatory manner. 481 U.S. at 286, 107 S.Ct. 1756. In support of his claim, McCleskey offered a sophisticated statistical study that demonstrated that Georgia defendants whose victims were white were 4.3 times as likely to receive a death sentence as those whose victims were black. Id. The Court denied his claim, holding that McCleskey’s statewide statistics did not meet his burden of proving that the imposition of the death penalty in his particular case was the product of purposeful discrimination. Id. at 293, 107 S.Ct. 1756. We have similarly refused to allow petitioners in California and Arizona to submit statistics that demonstrated racial disparities in the imposition of the death" }, { "docid": "2109243", "title": "", "text": "may be part of a trend toward diminishing regional and racial disparities in seeking the federal death penalty at the expense of no longer respecting disparate regional preferences regarding the ultimate sanction. Jurors, however, have the potential to assure that a community’s deeply held values are not rendered irrelevant by decisions of the national government. It appears that potential is often realized. There has only been one FDPA prosecution in which the jury found the death penalty to be justified in a state — Michigan — that does not itself have a statute providing for the death penalty. See A-68 to A-70. In any event, as indicated earlier, the Supreme Court has instructed that “[wjhere the discretion that is fundamental to our criminal process is involved, [courts should not] assume that what is unexplained is invidious.” McCleskey, 481 U.S. at 313, 107 S.Ct. 1756. Sampson, however, challenges the government to explain what he characterizes as regional and racial disparities in the operation of the FDPA. This is, in effect, a request for discovery. In the context of a Fifth Amendment selective prosecution claim, the Supreme Court has recently held that “a defendant who seeks discovery ... must show some evidence of both discriminatory effect and discriminatory intent,” and that “raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants.” United States v. Bass, 536 U.S. 862, 863, 864, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002). This court concludes that a comparable showing is required to obtain discovery concerning Sampson’s related Eighth Amendment claim. That showing has not been made. Thus, Sampson’s claim that the FDPA operates in a manner that is arbitrary and capricious must be decided on the current record. For the reasons described previously, Sampson’s three related arguments that the FDPA operates in a way that is arbitrary and capricious and is, therefore, cruel and unusual in violation of the Eighth Amendment are not, individually or cumulatively, convincing. See Bin Laden, 126 F.Supp.2d. at 263. Nor has Sampson demonstrated a violation of the Fifth Amendment based on racial disparities in the administration of the" }, { "docid": "6083501", "title": "", "text": "a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense____” United States v. Kunzman, 54 F.3d 1522, 1526 (10th Cir.1995) (quoting United States v. Levine, 983 F.2d 165, 166-67 (10th Cir.1992)). The purpose of a bill of particulars is not to obtain discovery, evidentiary detail of the government’s case, or information regarding the government’s legal theories. United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir.1983). The court finds that the indictment and notice of intent to seek the death penalty sufficiently apprise the defendant of the charges that he must be prepared to meet. Nguyen essentially argues that because this is a capital case, he is entitled to full evidentiary detail of the government’s case. Aside from his citation of Lankford, which as the court discussed earlier is inapposite, Nguyen offers no authority supporting his position, and the court has been unable to locate any. Moreover, the court notes that Nguyen has been provided with ample resources to aid in his investigation. Accordingly, Nguyen’s motion for a bill of particulars is denied. III. Discovery of Evidence in Mitigation Nguyen argues that the government should be required to disclose any evidence in its possession that is mitigating (Docs. 71, 72). The government responds that it has no objection to disclosing evidence in mitigation, and believes that it has already done so (Doc. 91). The court feels that it has already addressed this issue in its Order of January 26 ordering the government to disclose Brady material (Doc. 84 at 8). To that extent, Nguyen’s motion is granted. IV. Discovery Regarding Government’s Initial Recommendation to Seek the Death Penalty Nguyen requests disclosure of documents supporting the government’s recommendation to seek the death penalty in this case pursuant to the Fifth and Eighth Amendments (Docs. 75-76). He reasserts the same argument advanced in his omnibus motion to strike the death notice, i.e., that he has been arbitrarily singled out for death penalty prosecution (Doc. 76 at 1; Doc. 65 at 72). See section VI., supra. In the alternative," } ]

[ { "docid": "9625222", "title": "", "text": "March 3, 1839, “was to take from the claimant all right of action against the collector, by removing the ground on which the implied promise rested. Congress, being in session at the time that decision was announced, passed the explanatory act of February 26, 1845, which, by legislative construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at the time of payment of the duties alleged to have been illegally exacted, and took from the Secretary of the Treasury the authority to refund conferred by the act of 1839. * * *” It certainly is significant that Congress restored a right of action against federal officials acting ultra vires. These authorities make it clear that, unless and except as modified by statute, the common-law right of action for money had and received lies against a tax collector to recover taxes illegally collected, with notice that they are not paid voluntarily, but under protest; duress, express or implied, may make protest unnecessary, as already noted. Compare Lincoln v. Worcester, 8 Cush. (Mass.) 55, 61. In Erskine v. Van Arsdale, 15 Wall. 75, 77 (21 L. Ed. 63), the court says: “Taxes illegally assessed and paid may always be recovered back, if the collector understands from the payer that the taxes are regarded as illegal and that suit will be instituted to compel the refunding of them.” De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 743, 45 L. Ed. 1041, was also an action against the collector of the port of New York to recover duties alleged to have been illegally exacted and paid on certain importations oí sugar from Porto Rico after cession to the United States. On page 177 et seq. of 182 U. S., 21 Sup. Ct. 743, 45 L. Ed. 1041, the court deals with the question whether the legality of the duties can be tested in this form of action and answered in the affirmative. See, also, Pacific Whaling Co. v. United States, 187 U. S. 447," } ]

[ { "docid": "11977690", "title": "", "text": "be personal, common-law actions, to be responded to personally by appellee, and not as statutory ones against and to be responded to by,' the United States, through the collector as proxy, the petitions are completely demurrable. But they were not so intended. In Lincoln’s case no effort was made to plead any'of the elements of a common-law action. It is not claimed that the defendant had money in his hands which he had gotten from plaintiff, not in pursuance of his duties, but wrongfully, and is withholding from it under circumstances which make it inequitable for him to continue to do so. It is not even pleaded that the moneys plaintiff paid him were paid under duress and protest and therefore not voluntarily. This is an essential condition to a common-law action against the collector independent of statute, for moneys had and received, Elliott v. Swartwout, 10 Pet. 137, 9 L.Ed. 373; Cary v. Curtis, 3 How. 236, 11 L.Ed. 576, and until 1924 it was to the statutory action against him, Moore Ice Cream Co. v. Rose, 289 U.S. 373, 375, 53 S.Ct. 620, 77 L.Ed. 1265; Field, The Effect of an Unconstitutional Statute, p. 251, and cases; State v. Canfield Oil Co., 34 Ohio App. 267, 171 N.E.111; People v. Ventura Refining Co., 204 Cal. 286, 268 P. 347, 283 P. 60. On the contrary, it is pleaded that the moneys were paid over to and collected by appellee in pursuance of his duty to collect them. . Anniston’s case was pleaded the same way, until by its amendment, filed June 12, 1936, it alleged without pleading any facts but merely as a conclusion that nearly all of the sums it had paid were paid under duress and protest. But these allegations are not sufficient to convert the suit Anniston brought from the statutory action for refund, allowed by the Congress, to a common-law action for moneys had and received independent of statutory grant. For the case is framed as an action for refund. It is definitely pleaded that a claim for refund was made, not to the" }, { "docid": "11977692", "title": "", "text": "collector, but to the Commissioner. It is insisted that every step on which appellant relies in the statutory ■ refunding process had been gone through to the point of suit. And in its brief appellant makes it more clear that the suit was in reality not against the appellee, but against the United States, .by pointing to the statute, 26 U.S.C.A. § 1670 (b), authorizing the Commissioner to repay the collector the full amount of moneys recovered against him in any court for any internal revenue taxes collected by him, as well as to 28 U.S.C.A. § 842, providing that, upon the giving of a cer tificate of probable cause, no execution shall issue against the collector on any judgment against him for moneys he had collected, but the amount so recovered shall be paid out of the Treasury. In view of the suits plaintiffs have actually brought, and of the state of the authorities as to such suits, the briefs are full of what seems little better than quibbling over whether their actions are common-law actions, with statutory limitations, or purely statutory ones. We think it may not be doubted that the whole current of authority is to the effect that the actions they have brought are given by statute, and may not, except in accordance with statutory consent, be maintained. Cary v. Curtis, 3 How. 236, 11 L.Ed. 576; Barney v. Watson, 92 U.S. 449, 23 L.Ed. 730; Arnson v. Murphy, 109 U.S. 238, 3 S.Ct. 184, 27 L.Ed. 920; Id., 115 U.S. 579, 580, 6 S.Ct. 185, 29 L.Ed. 491; Cheatham v. United States, 92 U.S. 85, 23 L.Ed. 561; Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265; Rose v. McEachern, supra. In Schoenfeld v. Hendricks, 152 U.S. 691, 693,14 S.Ct. 754,755,38 L.Ed. 601, it is said: “It was decided by this court in Arnson v. Murphy, 109 U.S. 238, 3 S.Ct. 184 [27 L.Ed. 920], that the common-law right of action against a collector to recover duties illegally collected was taken away by act of congress, and a statutory" }, { "docid": "4510086", "title": "", "text": "said: “To show that the action still is personal, as laid down in Sage v. United States, 250 U.S. 33, 37, 39 S.Ct. 415, 63 L.Ed. 828, it would seem to be enough to observe that when the suit is begun it cannot be known with certainty that the judgment will be paid out of the Treasury. That depends upon the certificate of the Court in the case. It is not to be supposed that a stranger to an unwarranted transaction is made answerable for it; yet that might be the result of the suit if it could be brought against a successor to the collectorship. A personal execution is denied only when the certificate is given.” In Graham & Foster v. Goodcell, 282 U.S. 409, 430, 51 S.Ct. 186, 194, 75 L.Ed. 415, 1931, the court, in passing, rejected an argument that the United States, without substituting another remedy, could enact a valid statute depriving citizens of the right to recover from a Collector monies unlawfully collected by him, saying: “Such an action is personal and not against the United States”, citing the Sage and Smietanka cases. In Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308, 53 S.Ct. 150, 77 L.Ed. 325, 1932, it was held, on the authority of the Sage and Smietanka cases, supra, that issues determined in a suit against a Collector were not res judicata in a subsequent suit against the Commissioner. Congress had provided, in 1924, Revenue Act 1924, § 1014, 26 U.S.C.A. Int.Rev. Acts, page 128, that a suit against the Collector for recovery of taxes unlawfully collected might be brought, regardless of whether the tax had been paid under protest, and made that provision retroactive. In Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265, 1933, no protest had been filed, and the tax had been paid and the Collector had remitted the funds to the Treasury before the 1924 amendment was enacted; the collector, when sued, argued that the suit was personal and that the retroactive provision of that statute infringed his individual rights" }, { "docid": "707063", "title": "", "text": "save a substantial sum. After payment she filed claims for refund and then sued to recover the amount claimed. Calling attention to the provision of Sec. 3772 (b) that recovery could be had regardless of whether the amount of tax had been paid under protest or duress, this court proceeded to consider the trial court’s holding that plaintiff could not recover because she paid the tax voluntarily and without threat, demand or coercion. It held that unless the moneys were voluntarily paid to the Collector, in the sense that they were intended to be donations by the person who paid for the benefit of the person who owed the taxes, the absence of coercion would be immaterial. The court said (143 F.2d at page 537): “It is obvious that it is the volition of intent to donate which is determina- five.” (at page 537): “Here, in a sense, the moneys are 'voluntarily paid’ to the Collector, but it cannot be said that they are paid as a donation for the benefit of the original tax debtor.” It is clear that the holding in that case was that since the wife did not owe the taxes, and since they could not be collected from her or her property, the Collector in receiving her checks “wrongfully collected the taxes”; that the absence of coercion or duress on the part of the Collector, or the fact that payment was made on plaintiff’s own volition, was wholly immaterial so long as it could not be said that the payment was made as a donation for the benefit of the original tax debtor. ' It seems to us plain that the purpose of the provision making the showing of the protest and duress unnecessary was to indicate the Government’s attitude that it would not insist upon retaining moneys which it had received when it had no right to collect them. “A fine sense of honor had brought the statute into being.” Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265. The findings of the trial court are" }, { "docid": "23553082", "title": "", "text": "to. (2) Through an action at law brought against the United States. This is by virtue of the so-called Tucker Act (Judicial Code, § 24, par. 20, 24 Stat. 505, c. 359); it being held that a suit may be maintained directly against the United States for the recovery» of taxes wrongfully assessed and collected. Emery-Bird-Thayer Realty Co. v. United States (D. C.) 198 Fed. 242, 249; Christie Street Commission Co. v. United States, 136 Fed. 326, 69 C. C. A. 464. (3) Through an action against a collector who wrongfully exacted the tax, and who may be sued for such money as he is not entitled to retain. Smietanka v. Indiana Steel Co., 257 U. S. 1, 42 Sup. Ct. 1, 66 L. Ed. 99; Sage v. United States, 250 U. S. 33, 39 Sup. Ct. 415, 63 L. Ed. 828. In Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373, the court held that the collector was not liable in an action to recover the excess du ties mistakenly collected unless protest was made at the time of payment or notice was given to him not to pay the money over to the Treasury. The principle applied was the one applied to agents in private transactions — that a voluntary payment to an agent without notice of objection would not subject the agent to liability he having paid it over to his principal, but that payment with notice or with a protest might malee the agent liable if, notwithstanding the notice or protest, he paid the money over to his principal. But after an act of Congress required collectors to pay over such moneys it was held that the personal liability was gone. Cary v. Curtis, 3 How. 236, 11 L. Ed. 576. And later statutes, as pointed out in Smietanka v.- Indiana Steel Co., supra, recognize suits against collectors in such cases. In our opinion, section 252 of the act of 1918 was apparently designed to counteract the effect of section 3228 of the Revised Statutes, which limited refunds to a period of two years after" }, { "docid": "4510083", "title": "", "text": "money wrongfully and involuntarily paid under compulsion, although the Collector had paid the collected funds to the Treasury. Elliot v. Swartwout, 10 Pet. 137, 153, 155, 156, 9 L.Ed. 373, 1836; Story, J. in Cary v. Curtis, 3 How. 236, 254, 11 L.Ed. 576, 1845; Cf. Atchison, etc., R. Co. v. O’Connor, 223 U.S. 280, 287, 32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas.1913C, 1050, 1912. The taxpayer’s protest was a warning not to pay to the Treasury the moneys collected. Later statutes made it the duty of the Collector to turn in the moneys to the government, regardless of the protest; there were decisions to the effect that such statutes barred suits against the collector; but subsequent decisions cleared up that doubt. Philadelphia v. The Collector, 5 Wall. 720, 731, 18 L.Ed. 614; Arnson v. Murphy, 109 U.S. 238, 241, 3 S.Ct. 184, 27 L.Ed. 920. Included in such legislation was a statute, enacted in 1863, 12 Stat. 741, § 12 , which provided that, when judgment is procured against “a collector or other officer of the revenue for * * * the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies” either (1) “that there was probable cause for the act done by the collector or other officer, or (2) that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.” In United States v. Sherman, 98 U.S. 565, 25 L.Ed. 235, 1878, (as interpreted in Moore Ice Cream Co. v. Rose, supra) it was held that the effect of the filing of such a certificate is to convert the suit into one against the United States. Nevertheless, in Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 416, 63 L.Ed. 828, 1919, it was held that, in a" }, { "docid": "4378811", "title": "", "text": "capacity but as the agent of the United States. Second Nat’l Bank of Saginaw v. Woodworth, D.C.S.D.Mich., 54 F.2d 672, affirmed 6 Cir., 66 F.2d 170. While he was the formal party defendant, the real party in interest was the United States, which, by its intervention in the suit, likewise became a formal party thereto. The interests of the Collector and the United States were, however, identical. The tax, if collected, would be remitted to the Treasury of the United States. The appeal could have been prosecuted either by Glenn or the government. While it has been held, Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828, that a suit against the Collector for the recovery of an illegally held tax is not a suit against the United States, in respect to the application of the doctrine of res judicata, yet it has also been held that a judgment for or against the United States is binding upon the Collector who is the agent or trustee for the government. Second Nat’l Bank of Saginaw v. Woodworth, supra. However, it has been with great clarity pointed out that a suit against a Collector is today “an anomalous relic of bygone modes of thought” when he is engaged merely in the fulfillment of a ministerial duty. Moore Ice Cream Co. v. Rose, 289 U.S. 373, 382, 53 S.Ct. 620, 623, 77 L.Ed. 1265. There Mr. Justice Cardozo observed, “There may have been utility in such procedural devices in days when the government was not suable as freely as now (citing cases). They have little utility today, at all events where the complaint against the officer shows upon its face that in the process of collecting he was acting in the line of duty, * * * In such circumstances his presence as a defendant is merely a remedial expedient for bringing the government into court.” Whether the present appeal could be by us entertained, in the name of the United States, in view of this identity of interest between the government and the Collector, we need not now" }, { "docid": "13443422", "title": "", "text": "of such trade or business from January 1, 1918, to the date of such reorganization may at the option of the individual or partnership he taxed as the net income of a corporation is taxed under Titles II and III; in which event the net income and invested capital of such trade or business shall be computed as if such corporation had been in existence on and after January 1, 1918. * * * ” Unless Samuel F. Scott by filing an individual return on his ineome for that year had precluded himself from electing* to he taxed on his income from the Elmdale Mill for the year 1918 in the same manner as a corporation, the government might have properly assessed the 1918 and 1919 taxes on the income from the mill against Samuel F. Scott as an individual, hut on the same basis as the corporation would have been taxed if it had existed since January 1, 1918; and on that basis have adjusted the payments made by Samuel F. Scott, instead of refunding any portion of the money paid by Mr. Scott as his individual tax for 1918. It is urged by the government, however, that the deficiency assessment against the corporation of $96,803.87 was paid voluntarily by the corporation, and, if so, it eannot he recovered. This was true at common law; Chesebrough v. United States, 192 U. S. 253, 24 S. Ct. 262, 48 L. Ed. 433; but section 1014 of the act of 1924 (26 USCA § 156), in force at the time this payment was made, modified the common-law rule. Moore lee Cream Co. v. Rose, 289 U. S. 373, 53 S. Ct. 620, 77 L. Ed. 1265. Since the enactment of this section, “no suit or proceeding shall he maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, * * * or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner" }, { "docid": "22078708", "title": "", "text": "Mr. Justice Black delivered the opinion of the Court. Respondent sued the Treasurer of Puerto Rico in a local district court for recovery of 1927 income taxes paid under the laws of the Island. By construction of the local Puerto Rican statutes permitting suits for refunds, the local district court found that no right had been granted to sue at law for taxes voluntarily paid. The bill of complaint was then dismissed for lack of jurisdiction, because it disclosed that the tax in question had been paid voluntarily and without protest. The Supreme Court of Puerto Rico affirmed, but was reversed by the United States Circuit Court of Appeals. As conceded by respondent, this suit cannot be maintained unless authorized by a Puerto Rican law, because Puerto Rico cannot be sued without its consent. It is also conceded that the Puerto Rican legislature is not obligated to provide a judicial remedy for tax refunds. Respondent’s contentions here are that the governing statutes of the Island do authorize the present suit “either by express language or by necessary implication,” and that the Puerto Rican courts erroneously construed the local statutes. Section 75 of the controlling Income Tax Act of Puerto Rico, approved August 6, 1925, authorizes the Treasurer “to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, . . . and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected,” and requires him to “report to The Legislature of Porto Rico at the beginning of each regular session ... all transactions under this section.” The courts of Puerto Rico construed § 75 to mean that the Treasurer’s refusal to refund taxes not paid under protest is final; that the local, statutes grant the courts no jurisdiction to review this refusal; and that after the Treasurer’s report to the legislature, a voluntary taxpayer’s complaint must be addressed to the legislature. Disagreeing with this construction given the statute by the courts of Puerto Rico, the Circuit Court of Appeals (one Judge dissenting) found that the 1925 Act plainly provided" }, { "docid": "4510087", "title": "", "text": "personal and not against the United States”, citing the Sage and Smietanka cases. In Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308, 53 S.Ct. 150, 77 L.Ed. 325, 1932, it was held, on the authority of the Sage and Smietanka cases, supra, that issues determined in a suit against a Collector were not res judicata in a subsequent suit against the Commissioner. Congress had provided, in 1924, Revenue Act 1924, § 1014, 26 U.S.C.A. Int.Rev. Acts, page 128, that a suit against the Collector for recovery of taxes unlawfully collected might be brought, regardless of whether the tax had been paid under protest, and made that provision retroactive. In Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265, 1933, no protest had been filed, and the tax had been paid and the Collector had remitted the funds to the Treasury before the 1924 amendment was enacted; the collector, when sued, argued that the suit was personal and that the retroactive provision of that statute infringed his individual rights under the 5th Amendment. Mr. Justice Cardozo, speaking for the Court, rejected that argument, saying (289 U.S. at page 382, 383, 53 S.Ct. at page 623, 77 L.Ed. 1265): “A suit against a collector who has collected a tax in the fulfillment of a ministerial duty is to-day an anomalous relic of bygone modes of thought. He is not suable as a trespasser, nor is he to pay out of his own purse. He is made a defendant because the statute has said for many years that such a remedy shall exist, though he has been guilty of no wrong, and though another is to pay. * * * There may have been utility in such procedural devices in days when the government was not suable as freely as now. * * * They have little utility today, at all events where the complaint against the officer shows upon its face that in the process of collecting he was acting in the line of duty, and that in the line of duty he has turned" }, { "docid": "13443423", "title": "", "text": "refunding any portion of the money paid by Mr. Scott as his individual tax for 1918. It is urged by the government, however, that the deficiency assessment against the corporation of $96,803.87 was paid voluntarily by the corporation, and, if so, it eannot he recovered. This was true at common law; Chesebrough v. United States, 192 U. S. 253, 24 S. Ct. 262, 48 L. Ed. 433; but section 1014 of the act of 1924 (26 USCA § 156), in force at the time this payment was made, modified the common-law rule. Moore lee Cream Co. v. Rose, 289 U. S. 373, 53 S. Ct. 620, 77 L. Ed. 1265. Since the enactment of this section, “no suit or proceeding shall he maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, * * * or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress .” (Italics supplied.) This section was fully complied with in this case, as a demand for a refund was duly made upon the Commissioner before this action was brought. The Supreme Court in Phillips v. Commissioner, 283 U. S. 589, 598, 51 S. Ct. 608, 612, 75 L. Ed. 1289, has recently stated what the rights of a taxpayer are when payment of a tax erroneously assessed is demanded: “He may contest his liability by bringing an action, either against the United States or the collector, to recover the amount paid. This remedy is available where the transferee does not appeal from the determination of the Commissioner, and the latter makes an assessment and enforces payment by distraint; or where the transferee volmitarily pays the tax and," }, { "docid": "13777092", "title": "", "text": "considers to have been illegally exacted from him. Among these choices are: (1) a suit against the Director, formerly the Collector, of Internal Revenue, which event either party may demand a jury trial; in such case venue lies only at the legal residence of the Director; such was the suit here; (2) a suit against the United States in the Court of Claims, in which event, of course, there is no jury trial and venue is in the City of Washington, D. C.; (3) a suit against the United States under the Tucker Act, as amended, in which event a jury trial may be had, since the amendment of 1954 (28 U:S.C.A. § 2402). In such event, venue lies at the place of the principal business of the taxpayer; here, the Houston division of the Southern District of Texas, to which the case was removed. in We need not attempt to review all the arguments that have been advanced from time to time as to why the right of action against the collecting official for a refund of taxes illegally collected by him and turned into the Treasury should still be recognized as a valid subsisting right separate and distinct from the right of action against the United States, authorized under the Tucker Act. Suffice it to say that in spite of observations by the courts that a suit against the Collector (now the Director) “is to-day an anomalous relic of bygone modes of thought,” George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265, and the like, and in spite of the fact that concededly the differences between the two classes of suits have been narrowed by granting the right of trial by jury in Tucker Act tax refund suits and by eliminating the $10,000 limit on jurisdiction (Act of July 30, 1954, amending 28 U.S.C.A. § 2402), nevertheless Congress has consistently resisted the suggestion that the suit against the Director be abolished. See Walston, The Use of Juries in Federal Civil Income Tax Cases, 39 Taxes, The Tax Magazine, page 144. As" }, { "docid": "22066716", "title": "", "text": "12665. It alleged that there was no appeal provided by Oklahoma laws from defendant’s action in collecting and gave notice of protest and suit to defendant at the time of payment in the language of the section. By so doing petitioner was relieved of the necessity of establishing that the payment was not voluntary and obtained the advantage of a statutory lien lis pendens on the tax payment. By § 12665, Oklahoma creates a judicial procedure for the prompt recovery by the citizen of money wrongfully collected as taxes. It is the sovereign’s- method of tax administration. Oklahoma designates the official to be sued, orders him to hold the tax, empowers its courts to do complete justice by determining the amount properly due and directs its collector to pay back any excess received to the taxpayer. The state provides this procedure in lieu of the common law right to claim reimbursement from the collector. The issue of coercion and duress was eliminated at the pre-trial conference without objection by the petitioner. The section makes sure the taxpayer’s recovery of illegal payments. The section is like the California statute involved in Smith v. Reeves, supra, except for the immaterial difference that the money collected is directed to be held separate and apart by the collector instead of being held in the general funds of the State Treasurer. See § 3669, California Political Code, as amended by California Statutes (1891) 442. In the Reeves case, as here, the suit was against the official, not the individual. The Oklahoma section differs from the Colorado law, § 6, Chapter 211, Session Laws of Colorado 1907, considered in Atchison, T. & S. F. Ry. Co. v. O’Connor, supra, in that the Colorado statute left the taxpayer to his remedy against the collector and merely directed the refund of the tax by the Treasurer in accordance with any judgment or decree which might be obtained. In the O’Connor case, in accordance with the statute, the suit, as this Court’s opinion shows, was against the individual, not the official. We are of the view that the present" }, { "docid": "15279380", "title": "", "text": "by an Act of Congress.” Subsequently legislation authorizing the Commissioner to pay back sums collected by judgments against collectors of internal revenue was construed as giving statutory authority to bring such suits. Philadelphia v. The Collector, 5 Wall. 720, 18 L.Ed. 614. But the exact nature of such a suit was for some time in doubt. The matter now appears settled by Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265. In that case, suit was brought against a collector of internal revenue to recover income and profits taxes alleged to have been wrongfully collected. The defendant demurred on the ground tha?t the money had not been paid under protest. Subsequent to the payments in question, but before suit was begun, Congress had abolished the requirement of protest in suits against a collector. The lower courts sustained the defendant’s demurrer. It was argued by the Government that as applied to payments made before the statute was passed, such a statute deprived the collec- . tor of property without due process of law, and was unconstitutional. The Supreme Court, after holding the language of the statute broad enough to cover all payments, whether made before or after its passage, held that a suit against a collector, where it appeared on the face of the pleadings that the collector would be entitled to exoneration as a matter of right, was merely a method of bringing the Government into court, and that in all such cases the collector was not deprived of any property by the abolition of the requirement of protest as a defense. The court said, 289 U.S. 373, at page 382, 53 S.Ct. 620, 623, 77 L.Ed. 1265: “A suit against a collector who has collected a tax in the fulfillment of a ministerial duty is to-day an anomalous relic of bygone modes of thought. He is not suable as a trespasser, nor is he to pay out of his own purse. He is. made a defendant because the statute has said for many years that such a remedy shall exist, though he has" }, { "docid": "707064", "title": "", "text": "debtor.” It is clear that the holding in that case was that since the wife did not owe the taxes, and since they could not be collected from her or her property, the Collector in receiving her checks “wrongfully collected the taxes”; that the absence of coercion or duress on the part of the Collector, or the fact that payment was made on plaintiff’s own volition, was wholly immaterial so long as it could not be said that the payment was made as a donation for the benefit of the original tax debtor. ' It seems to us plain that the purpose of the provision making the showing of the protest and duress unnecessary was to indicate the Government’s attitude that it would not insist upon retaining moneys which it had received when it had no right to collect them. “A fine sense of honor had brought the statute into being.” Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265. The findings of the trial court are fully supported by evidence that the payment by Durston was not intended for the benefit of either Watson or the Government. It follows that under the authority of Parsons v. Anglim, supra, and the plain language of Sec. 3772(b), supra, Durston was entitled to the judgment which he recovered below. The Appeal from the Judgment for Halton As previously indicated Halton paid to the United States the sum of $5877.97. This amount was paid under circumstances identical to those under which Durston, as stated above, paid its $3900. With respect to Halton’s payment of this sum, the appellant makes the same argument it did with regard to Durston, namely, that Halton was a volunteer and, as such, it cannot now recover. For the same reasons heretofore stated in dealing with Durston’s appeal we reject this contention. The Government urges some additional points on this appeal to which we now turn. It is contended that the Government’s lien for taxes owed by Watson was superior and prior to the mortgage lien. As stated, Halton held a" }, { "docid": "15279379", "title": "", "text": "v. Curtis, 3 How. 236, 11 L.Ed. 576; Curtis v. Fiedler, 2 Black, 461, 478, 17 L.Ed. 273; The Collector v. Hubbard, 12 Wall. 1, 20 L.Ed. 272. The court said in Curtis v. Fiedler, supra: “But the law never implies a promise to pay unless some duty creates such an obligation, and more especially it never implies a promise to do an act contrary to duty or contrary to law. Collectors under the act referred to were required to pay all moneys received for unascertained duties or for duties paid under protest into the Treasury of the United States, and consequently this Court held that in a case arising under that law, where that duty had been performed by the collector, the law would not imply a promise on his part to pay the same back to the importer, because he was under no obligation to pay the money twice, and to have paid the same -back to the importer in the first place would have been contrary to his official duty as prescribed by an Act of Congress.” Subsequently legislation authorizing the Commissioner to pay back sums collected by judgments against collectors of internal revenue was construed as giving statutory authority to bring such suits. Philadelphia v. The Collector, 5 Wall. 720, 18 L.Ed. 614. But the exact nature of such a suit was for some time in doubt. The matter now appears settled by Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265. In that case, suit was brought against a collector of internal revenue to recover income and profits taxes alleged to have been wrongfully collected. The defendant demurred on the ground tha?t the money had not been paid under protest. Subsequent to the payments in question, but before suit was begun, Congress had abolished the requirement of protest in suits against a collector. The lower courts sustained the defendant’s demurrer. It was argued by the Government that as applied to payments made before the statute was passed, such a statute deprived the collec- . tor of property without due" }, { "docid": "6369818", "title": "", "text": "by the court overruled, and, the defendants declining to plead further, judgment was entered against both defendants for the entire amounts claimed in all three counts, with interest at 7 per cent, per annum and the costs of the suit. As to the second grounds of demurrer, the court was clearly in error. Each defendant acted separately, and if plaintiff is entitled to judgment it can only recover from the collector to whom it made the payments. Sage v. United States, 250 U. S. 33, 39 Sup. Ct. 415, 63 L. Ed. 828; Smietanka, Collector, v. Indiana Steel Co., 257 U. S. 1, 42 Sup. Ct. 1, 66 L. Ed. 99; Union Trust Co. v. Wardell, 258 U. S. 537, 42 Sup. Ct. 393, 66 L. Ed. 753. In Patton v. Brady, Executrix, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713, it was held that such an action against the collector survives his death, and his executor is the proper and only party to be substituted as the defendant, as the action is personal against the collector who received the tax. This is reaffirmed and the reasons therefor are fully set out in Smietanka v. Indiana Steel Co., supra, pp. 4 and 5 (42 Sup. Ct. 1). As to the first grounds of the demurrers, the law, unless changed by the acts of Congress relied on by counsel for plaintiff, Hereafter referred to, prevents a recovery in such an action, if the tax was paid voluntarily, without coercion and without protest. A leading authority on that point is Philadelphia v. Collector, 72 U. S. (5 Wall.) 720, 731, 732 (18 L. Ed. 614). It was there held: “Appropriate remedy to recover back money paid under protest on account of duties or taxes erroneously or illegally assessed, is an action of assumpsit for money had and received. Where the party voluntarily pays the money, he is without remedy; but if he pays it by compulsion of law, or, under protest, or with notice that be intends to bring suit to test the validity of the claim, be" }, { "docid": "11977693", "title": "", "text": "common-law actions, with statutory limitations, or purely statutory ones. We think it may not be doubted that the whole current of authority is to the effect that the actions they have brought are given by statute, and may not, except in accordance with statutory consent, be maintained. Cary v. Curtis, 3 How. 236, 11 L.Ed. 576; Barney v. Watson, 92 U.S. 449, 23 L.Ed. 730; Arnson v. Murphy, 109 U.S. 238, 3 S.Ct. 184, 27 L.Ed. 920; Id., 115 U.S. 579, 580, 6 S.Ct. 185, 29 L.Ed. 491; Cheatham v. United States, 92 U.S. 85, 23 L.Ed. 561; Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265; Rose v. McEachern, supra. In Schoenfeld v. Hendricks, 152 U.S. 691, 693,14 S.Ct. 754,755,38 L.Ed. 601, it is said: “It was decided by this court in Arnson v. Murphy, 109 U.S. 238, 3 S.Ct. 184 [27 L.Ed. 920], that the common-law right of action against a collector to recover duties illegally collected was taken away by act of congress, and a statutory remedy given, which was exclusive.” Expressions in Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99; Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828; Graham & Foster v. Goodcell, 282 U.S. 409, 51 S.Ct. 186, 75 L.Ed. 415; White v. Hopkins (C.C.A.) 51 E.(2d) 159; Tait v. Western Md. R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405, relied on by appellants as declaring the law to be of a different purport, do not do so. They must be read as applied to the situations specifically dealt with under those decisions and the matters decided in them. They did not purport to deal with the question at issue here, whether the action against the collector for collections made officially would lie at common law independent of the congressional consent evidenced by statute. They may not be distorted into an overruling of the long line of cases beginning with Elliott v. Swartwout, which discuss and point the difference between a common-law action against the" }, { "docid": "13777093", "title": "", "text": "a refund of taxes illegally collected by him and turned into the Treasury should still be recognized as a valid subsisting right separate and distinct from the right of action against the United States, authorized under the Tucker Act. Suffice it to say that in spite of observations by the courts that a suit against the Collector (now the Director) “is to-day an anomalous relic of bygone modes of thought,” George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265, and the like, and in spite of the fact that concededly the differences between the two classes of suits have been narrowed by granting the right of trial by jury in Tucker Act tax refund suits and by eliminating the $10,000 limit on jurisdiction (Act of July 30, 1954, amending 28 U.S.C.A. § 2402), nevertheless Congress has consistently resisted the suggestion that the suit against the Director be abolished. See Walston, The Use of Juries in Federal Civil Income Tax Cases, 39 Taxes, The Tax Magazine, page 144. As an illustration of this Congressional resistance to such a proposal, it is significant that when Congress abolished the position of “Collector of Internal Revenue” and created the position of “Director,” by the reorganization plans of 1950 and 1952, Congress attached an amendment to the plan to make certain that this historical right of action would be continued. This amendment provided: “Nothing in Reorganization Plan Numbered 26 of 1950 or Reorganization Plan Numbered 1 of 1952 shall be construed to impair any right or remedy, including trial by jury, to recover any internal revenue tax alleged to have been erroneously or illegally assessed or collected.” P.L. 567, See. 3(a) (July 16, 1952), 66 Stat. 735. When, in 1954, proposals were made to Congress that a taxpayer suing for a refund of taxes illegally exacted should be entitled to have a jury trial in the district of his residence rather than only in the district of the residence of the District Director, bills were introduced in each House of Congress to accomplish this result. The Senate version," }, { "docid": "23553081", "title": "", "text": "section 252 of the act of 1918. The primary purpose of that enactment was to permit the Commissioner of his own volition, upon discovery of any overpayment, to credit or refund the same, notwithstanding the provisions of section 3228 of the Revised Statutes, and to limit the time within which he could make such credit or refund to “five years from the date the return was made.” The section does not in express terms purport to give the taxpayer a right to sue for the recovery of the excess in the tax paid. It simply defines the powers and duties of the Commissioner in correcting overpayments which he finds have been made. It was intended to protect the Commissioner • in making refunds which ought to be made, even though no claim for refund was filed, or though the two-year period for filing claims prescribed by section 3228 had expired. Taxes erroneously paid or illegally exacted may be recovered: (1) From the Commissioner of' Internal Revenue under section 3220 of the Revised Statutes, heretofore referred to. (2) Through an action at law brought against the United States. This is by virtue of the so-called Tucker Act (Judicial Code, § 24, par. 20, 24 Stat. 505, c. 359); it being held that a suit may be maintained directly against the United States for the recovery» of taxes wrongfully assessed and collected. Emery-Bird-Thayer Realty Co. v. United States (D. C.) 198 Fed. 242, 249; Christie Street Commission Co. v. United States, 136 Fed. 326, 69 C. C. A. 464. (3) Through an action against a collector who wrongfully exacted the tax, and who may be sued for such money as he is not entitled to retain. Smietanka v. Indiana Steel Co., 257 U. S. 1, 42 Sup. Ct. 1, 66 L. Ed. 99; Sage v. United States, 250 U. S. 33, 39 Sup. Ct. 415, 63 L. Ed. 828. In Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373, the court held that the collector was not liable in an action to recover the excess du ties mistakenly collected unless protest" } ]

[ { "docid": "10372640", "title": "", "text": "the estate of said deceased allottee: Provided further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twenty-sixth, nineteen hundred a,nd thirty-ono; but if no such issue survive, then sneli allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be uot done, or in the event the issue hereinbefore. provided for die before April twenty-sixth, nineteen hundred and thirty-one, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions: Provided further, That the provisions of section twenty-three of the act of April twenty-sixth, nineteen hundred and six, as amended by this act, are hereby made applicable to all wills executed under this section.” Under the provisions of such section 9 restrictions are removed upon the death of the allottee, except in eases falling within the two provisos thereto. The first proviso continues qualified restrictions as to full-blood adult Indian heirs by requiring a conveyance of the inherited interest of such an heir to bo approved by the court having jurisdiction of the allottee’s estate, acting as a federal agency. Parker v. Richard, 250 U. S. 235, 238, 239, 39 S. Ct. 442, 63 L. Ed. 954; Harris v. Bell, 254 U. S. 103, 41 S. Ct. 49, 65 L. Ed. 159; United States v. Gypsy Oil Co. (C. C. A. 8) 10 F.(2d) 487, 489-490. Counsel for Holmes contend that the second proviso limits, in ease of. less than full-blood heirs, the removal of restrictions, and in ease of full-blood heirs, the qualification of such restrictions, resulting from the death of the allottee, only as to the special estate in the homestead which" } ]

[ { "docid": "13498884", "title": "", "text": "315, in part reads as follows: “That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: * * *.” As amended by the Act of April 12, 1926, 44 Stat.- 239, it reads in part as follows : “The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said qllottee’s land: Provided, That hereafter no conveyance of any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an állottée of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator: * t- * y’ Lucy Poloke died testate in the year 1925 and her allotment and the funds in the custody of the Secretary of the Interior derived from royalties under the lease of said allotment passed by devise and bequest to her daughter, Suma Burgess. Since Suma Burgess took by devise and bequest and not by inheritance, the property passed to her freed of restrictions. Cf. Parker v. Richard, 250 U.S. 235, 39 S.Ct. 442, 63 L.Ed. 954; Whitchurch v. Section 6 of the Act of January 27, 1933, 47 Stat. 777, 778, in part reads: Crawford, 10 Cir., 92 F.2d 249. Whether the effect of the Act of April 12, 1926, was to reimpose restrictions upon such property we deem it unnecessary to determine. Even if such restrictions were reimposed, the declaration of trust was valid, having been approved by the county court having jurisdiction of the. settlement of the estate of Lucy Poloke, and by the Secretary of the Interior. Section 1 of the Act of May 27, 1908, 35 Stat. 312, authorized the Secretary of the" }, { "docid": "12337866", "title": "", "text": "of the entire property or business of a corporation; and in all other cases have required the corporations themselves to report their income. Treas. Regs. 33, arts. 26, 209; Treas. Regs. 45, arts. 424, 622. That construction is clearly correct. The language of the section contemplates a substitution of -the receiver for the corporation; and there can be such substitution only when the receiver is in complete control of the properties and business of the corporation. Moreover, there is no provision for the consolidation of the return of a receiver of part of a corporation’s property or business with the return of the corporation itself. It may not be assumed that Congress intended to require the filing of two separate returns for the same year, each covering only a part of the corporate income, without making provision for consolidation so that the tax could be based upon the income as a whole.” The commissioner further asserts that many of the alleged heirs of Thlocco were Indians, that some of them must have been restricted Indians whose incomes were not subject to federal income taxes, and therefore the receiver was not required to make returns and pay taxes on the income that had accumulated in trust in his hands. Thlocco was a full-blood Creek Indian and therefore the allotment was restricted. He died about 1900. Upon his death, under section 9, Act May 27, 190!?. (35 Stat. 315), the general restrictions wers, removed. If the allotment passed to a full-blood Indian heir or if Thlocco left surviving issue born after March 4, 1906, qualified restrictions were continued. Holmes v. United States (C. C. A. 10) 53 F.(2d) 960; United States v. Gypsy Oil Co. (C. C. A. 8) 10 F. (2d) 487, 489, 490; Parker v. Richard, 250 U. S. 235, 238, 239, 39 S. Ct. 442, 63 L. Ed. 954; Harris v. Bell, 254 U. S. 103, 41 S. Ct. 49, 65 L. Ed. 159. It is not shown that there were any such heirs or issue claiming under Thlocco. Whether income from lands allotted to a full-blood Creek Indian," }, { "docid": "12768362", "title": "", "text": "same manner as patents for lands are recorded.” The Act of May 27, 1908, 35 Stat. 312, after prescribing the status of the lands allotted to the Five Civilized Tribes, in part reads: “ * * * The Secretary of the Interior shall not he prohibited by this Act from continuing to remove restrictions as heretofore, * * *.” Section 1. Under the Act of 1904 it is plain -that the power of the Indian Agent is limited to investigation and recommendation, and that the final determination with respect to removal of restrictions devolves upon the Secretary of the Interior. It follows that the deed from Katie to Mahaley and George, lacking the approval of the Secretary of the Interior, was ineffectual, and that Mahaley and George acquired no estate in, the lands here involved. We deem it unnecessary to pass on the scope of the Act of May 10, 1928, 45 Stat. 495. For' the reasons we have indicated, the decree of dismissal was proper. Affirmed. The Acts of Congress dealing with the powers and duties of the Dawes Commission are: Act of March 3, 1893, 27 Stat. 612, 645, 646; Act of Juno 10, 1896, 29 Stat. 321, 339, 340; Act of June 7, 1897, 30 Stat. 62, 83, 84; Act of July 1, 1898,' 30 Stat. 571, 591; Act of May 31, 1900, 31 Stat 221, 236; Act of March 3, 1901, 31 Stat. 1058, 1077; Act of May 27, .1902, 32 Stat. 245, 258; Act of March 3, 1903, 32 Stat. 982, 994; Act of April 21, 1904, 33 Stat. 189, 204; Act of March 3, 1905, 33 Stat. 1048, 1060, 1071;. Act of June 21, 1906, 34 Stat. 325, 340. ■ Willingham v. State, 21 Éla. 76T 763; Moore v. Wilson, 84 Kan. 745, 115 P. 548; Monroe’s Guardian v. Monroe, 215 Ky. 440, 285 S.W. 250. Rogers v. Noel, 34 Okl. 238, 124 P. 070, 977; Simmons v. Whittington, 27 Okl. 356, 112 P. 1018, 1020; Murrow Indians Orphans’ Home v. McClendon, 64 Okl. 205, 166 P. 1101, 1102." }, { "docid": "16828152", "title": "", "text": "the Five Civilized Tribes there is need of the continued protection of the Government in relation to their restricted Indian property and income therefrom, it is believed that, . . . the restrictions on their allotted and other restricted lands should be extended for an additional period of 25 years commencing on April 26, 1931, and legislation for that purpose should be enacted.” (Italics ours.) (S.Rep. 982, 70th Cong., 1st Sess., Cong.Doc.Series 8831.) We accordingly conclude that the Nelis Cooper deed of May 8, 1928, lacking the requisite approval, was void. The judgment is affirmed. Holmes v. United States, 10 Cir., 53 F.2d 960, 963. Holmes v. United States, 10 Cir., 53 F.2d 960, 961; Parker v. Richards, 250 U.S. 235, 238, 239, 39 S.Ct. 442, 63 L.Ed. 954; Harris v. Bell, 254 U.S. 103, 41 S.Ct. 49, 65 L.Ed. 159; United States v. Gypsy Oil Co., 8 Cir., 10 F.2d 487, 489, 490. Sunderland v. United States, 266 U.S. 226, 234, 235, 45 S.Ct. 64, 69 L.Ed. 259; Mott v. United States, 283 U.S. 747, 750, 751, 51 S.Ct. 642, 75 L.Ed. 1385; United States v. Goldfeder, 10 Cir., 112 F.2d 615, 616; United States v. Watashe, 10 Cir., 102 F.2d 428, 430; United States v. Brown, 8 Cir., 8 F.2d 564, 568. United States v. Thurston County, Neb., 8 Cir., 143 F. 287, 292; National Bank of Commerce v. Anderson, 9 Cir., 147 F. 87, 89, 90. National Bank v. Insurance Co, 104 U. S. 54, 67, 26 L.Ed. 693; Cook v. Tullis, 85 U.S. 332, 341, 342, 18 Wall. 332, 341, 342, 21 L.Ed. 933; Republic Supply Co. v. Richfield Oil Co., 9 Cir., 79 F.2d 375, 377. Maryland Casualty Co. v. United States, 251 U.S. 342, 346, 40 S.Ct. 155, 64 L.Ed. 297; Detroit & Windsor Ferry Co. v. Woodworth, 6 Cir., 115 F.2d 795, 797. Drummond v. United States, 10 Cir., 131 F.2d 568, 570; Taylor v. Tayrien, 10 Cir., 51 F.2d 884, 890, certiorari denied 284 U.S. 672, 52 S.Ct. 127, 76 L.Ed. 569; Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565," }, { "docid": "20330711", "title": "", "text": "of allottees and that the language of the quoted provision of the Act of January 27, 1933, embraces all full-blood Indian heirs. Had the Congress merely intended to lay down a procedure to be followed in obtaining approval of deeds by full-blood Indian heirs and devisees of allottees, required by § 9, supra, it is reasonable to assume that it would have made express reference to § 9 and would have included devisees as well as heirs. Instead, it used the sweeping language “any full-blood Indian heir.” We think when due consideration is given to the purposes of the enactment as stated in the letter of the Secretary, and the broad sweep of the language employed, the quoted provision of the Act of January 27, 1933, must be construed to impose restrictions against alienation upon lands passing by descent to full-blood Indian heirs. We so held in Whitchurch v. Crawford, 10 Cir., 92 F.2d 249, 253, and McCurtain v. Palmer, 10 Cir., 121 F.2d 1009, 1010. The power of Congress constitutionally, to reimpose such restrictions is no longer open to question. Accordingly, we conclude that when the land passed to the full-blood Indian heirs of Frank Ned, it became restricted against alienation and that the deed to Murray, not having the requisite approval, is void. The judgment is affirmed. Commissioner of Internal Revenue v. Owens, 10 Cir., 78 F.2d 768, 775; Holmes v. United States, 10 Cir., 53 F.2d 960, 961; Parker v. Richard, 250 U.S. 235, 238, 39 S.Ct. 442, 63 L.Ed. 954; Harris v. Bell, 254 U.S. 103, 41 S.Ct. 49, 65 L.Ed. 159. McCurdy v. United States, 246 U.S. 263, 273, 38 S.Ct. 289, 62 L.Ed. 706; Brader v. James, 246 U.S. 88, 96, 38 S. Ct. 285, 62 L.Ed. 591; Tiger v. Western Investment Co., 221 U.S. 286, 31 S.Ct. 578, 55 L.Ed. 738; Whitchurch v. Crawford, 10 Cir., 92 F.2d 249, 253; Hickey v. United States, 10 Cir., 64 F.2d 628, 629, 631." }, { "docid": "8657423", "title": "", "text": "Eleven, allowed the newly added General Counsel attorney to work on claims cases; this was not authorized, however, by the Tribal Council resolution on which Amendment Eleven purported to be based. . Udall v. Littell, 119 U.S.App.D.C. 197, 338 F.2d 537 (1964). . Littell v. Udall, 242 F.Supp. 635 (1965). . Rev.Stat. § 441 (1878), as amended, 5 U.S.C. § 485(10) (1964). . Rev.Stat. § 463 (1878), 25 U.S.C. § 2 (1964). . See, e. g., Parker v. Richard, 250 U.S. 235, 39 S.Ct. 442, 63 L.Ed. 954 (1919) (supervision of lease income); United States v. Birdsall, 233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930 (1914) (authority to make recommendations concerning sentences for violations of laws on liquor traffic with Indians); cf. Boesche v. Udall, 373 U.S. 472, 83 S.Ct. 1373, 10 L.Ed.2d 491 (1963) (general managerial power over public lands includes authority to cancel administratively an invalid lease). . Armstrong v. United States, 306 F.2d 520, 522 (10th Cir. 1962). . Rainbow v. Young, 161 F. 835, 838 (8th Cir. 1908). . See S.Rep. No. 8, 83d Cong., 1st Sess. (1953). . Rev.Stat. § 2103 (1878), as amended, 25 U.S.C. § 81 (1964). . Rev.Stat. § 2104 (1878), 25 U.S.C. § 82 (1964). . 25 U.S.C. § 81 is derived from Acts of Mar. 3, 1871, ch. 120, § 3, 16 Stat. 570, and May 21, 1872, ch. 177, §§ 1, 2, 17 Stat. 136; 25 U.S.C. § 82 is Act of May 21, 1872, ch. 177, § 3, 17 Stat. 137. 25 U.S.C. § 2 is derived from Acts of July 9, 1832, ch. 174, § 1, 4 Stat. 564, and July 27, 1868, ch. 259, § 1, 15 Stat. 228; 5 U.S.C. § 485(10) originated in Act of March 3, 1849, eh. 108, § 5, 9 Stat. 395. . Act of April 29, 1874, ch. 135, 18 Stat. 35. . A contemporaneous report indicates Congress was concerned with remedying a particular situation and did not consider whether its efforts were legally imperative. It indicates, moreover, that administrative laxity was at least partially to account for the" }, { "docid": "12768355", "title": "", "text": "remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” The trial court held that the Act of May 10, 1928, is limited in its application to “lands allotted to members of the Five Civilized Tribes,” enrolled as of one-half or more Indian blood,.and did not effect an extension of restrictions in deeds of lands to such members purchased with restricted funds. (Italics ours.) The Act of May 27, 1908, 35 Stat. 312, conferred upon the Secretary of the Interior the power to “remove such restrictions * * * under such rules and regulations concerning terms of sale and' disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” Pursuant thereto the Secretary by rule prescribed that “where lands are purchased for the use and benefit of any citizen of the Five Civilized Tribes of the restricted class, payment for which is made from .proceeds arising from the sale of restricted allotted land, *, * * the superintendent * * * shall cause conveyance of such lands, to be made on form of conveyance containing an habendum clause against alienation or incumbrance until April 26, 1931.” The rule further prescribed the form of the habendum clause substantially in the tenor of the habendum clause in the deeds made to Katie on March 20, 1924, and October 10, 1925. The power of the Secretary of the Interior to make the regulation was upheld in Sunderland v. United States, 266 U.S. 226, 234, 235, 45 S.Ct. 64, 69 L.Ed. 259. See, also, Mott v. United States, 283 U.S. 747, 751, 51 S.Ct. 642, 75 L.Ed. 1385. In the Sunderland case the court said: “Since the allotted lands could not be sold or encumbered without his consent, and since the proceeds of any sale thereof were subject to his control and could only be disposed of with his approval and under such rules as he might prescribe for the ■ benefit of the respective Indians, the" }, { "docid": "13498893", "title": "", "text": "court sought to set aside the declaration of trust and terminate the trust. Hence, it was adverse to the trust. The trust instrument vested broad powers in the trustee. We think it was authorized to represent the cestuis que trustent, and that they were also bound by the decree of the state court. The appellants in cause No. 1777 did not below and have not here challenged the jurisdiction of the state court in cause No. 2190S. We conclude that the action of the trustee in entering into the compromise pursuant to the decree of the state court was proper. The decree is affirmed. Hereinafter called the bank. The Secretary was of the opinion the remainder of the trust estate was unrestricted. Hereinafter called Alice May Bosen. By the Act of May 10, 1928, 45 Stat. 495, the restrictions imposed by the Act of May 27, 1908, as amended by the Act of April 12, 1926, were extended for the period of 25 years from and including April 26, 1931. It is well settled that Congress has plenary power to reimpose restrictions. Whitehurch v. Crawford, 10 Cir., 92 F,, 2d 249, 253; Holmes v. United States, 10 Cir., 53 F.2d 960, 962; United States v. Getzelman, 10 Cir., 89 F.2d 531, 536, certiorari denied 302 U.S. 708, 58 S.Ct. 27, 82 L.Ed. 547; Hickey v. United States, 10 Cir., 64 F.2d 628, 631; Taylor v. Tayrien, 10 Cir., 51 F.2d 884, 887, certiorari denied 284 U.S. 672, 52 S.Ct. 127, 76 L.Ed. 569; McCurdy v. United States, 246 U.S. 263, 273, 38 S.Ct. 289, 62 L.Ed. 706. That the Commissioner of Indian Affairs thought otherwise is clearly evidenced by his report to the Secretary of the Interior, approved by the latter, in which the Commissioner stated the allotment and the funds passed to Suma Burgess under an approved will of Lucy Poloke freed of restrictions. See Sunderland v. United States, 266 U.S. 226, 234, 235, 45 S.Ct. 64, 69 L.Ed. 259; Parker v. Richard, 250 U.S. 235, 237, 238, 240, 39 S.Ct. 442, 63 L.Ed. 954. Freeman on Judgments, 5th" }, { "docid": "5664134", "title": "", "text": "incumbrance prior to April twenty-six, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” And the material part of section 9, as amended by the Act of April 12, 1926, 44 Stat. 239, provides: “The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction oi the settlement of the estate of the deceased allottee or testator: Provided further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March 4, 1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior for the use and support of such issue, during their life or lives, until April 26, 1931; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from restrictions; if this be not done, or in the event the issue hereinabove provided for die before April 26, 1931, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions: * sfc * ” Frances Bessie Jim, daughter of the allottee, was born after March 4, 1906, and she is still living. Therefore, on the death of the allottee the land constituting his homestead remained inalienable for her use and support until April 26, 1931. Parker v. Riley, 250 U.S. 66, 39 S.Ct. 405, 63 L.Ed. 847; Holmes v. United States, 10 Cir., 53 F.2d 960;" }, { "docid": "16828151", "title": "", "text": "favor of the Indians. A construction that the interest acquired through inheritance by Nelis Cooper remained subject to the qualified restrictions of § 9 will further the manifest policy of Congress to protect full-blood Indian heirs of the Five Civilized Tribes against loss of their lands, a policy manifest by the Act of January 27, 1933, 47 Stat. 777, 779, which imposed qualified restrictions generally with respect to interests in land of such full-blood Indian heirs. See Murray v. Ned, 10 Cir., 135 F.2d 407, certiorari denied November 8, 1943, 64 S.Ct. 188. Finally, reference to the legislative history of the Act of May 10, 1928, confirms the construction we have adopted. The Committee on Indian Affairs of the United States Senate adopted as a part of its report a letter by the Secretary of the Interior who drafted and sponsored that Act. In his letter submitting the proposed bill to Congress, the Secretary, in part, stated: “ * * * it appearing that in the cases of the full-blood and other restricted Indians of the Five Civilized Tribes there is need of the continued protection of the Government in relation to their restricted Indian property and income therefrom, it is believed that, . . . the restrictions on their allotted and other restricted lands should be extended for an additional period of 25 years commencing on April 26, 1931, and legislation for that purpose should be enacted.” (Italics ours.) (S.Rep. 982, 70th Cong., 1st Sess., Cong.Doc.Series 8831.) We accordingly conclude that the Nelis Cooper deed of May 8, 1928, lacking the requisite approval, was void. The judgment is affirmed. Holmes v. United States, 10 Cir., 53 F.2d 960, 963. Holmes v. United States, 10 Cir., 53 F.2d 960, 961; Parker v. Richards, 250 U.S. 235, 238, 239, 39 S.Ct. 442, 63 L.Ed. 954; Harris v. Bell, 254 U.S. 103, 41 S.Ct. 49, 65 L.Ed. 159; United States v. Gypsy Oil Co., 8 Cir., 10 F.2d 487, 489, 490. Sunderland v. United States, 266 U.S. 226, 234, 235, 45 S.Ct. 64, 69 L.Ed. 259; Mott v. United States, 283 U.S." }, { "docid": "11934322", "title": "", "text": "of § 9 of the Act of May 27, 1908, 35 Stat. 312, 315, as amended by the Act of April 12, 1926, 44 Stat. 239, and Caroline was without power to make a valid conveyance of her interest in the allotment without the approval of the county court having jurisdiction of the estate of Betsy. The county court having power to withhold approval of the conveyance from Caroline to Harris, the question arises as to whether or not it could impose as a condition to such approval the inclusion of the restrictive clause in the deed from Harris to Caroline. In approving deeds to full-blood Indian heirs of inherited lands, the county court acts as a federal instrumentality. See United States v. Gypsy Oil Co., 8 Cir., 10 F.2d 487. The death of the original allottee does not wholly remove restrictions, but qualified restrictions are continued as to full-blood Indian heirs by virtue of the provisions of § 9, supra, and as to minor heirs by the provisions of § 6 of the Act of 1908. United States v. Gypsy Oil Co., supra. It has been held that the Secretary of the Interior, since he has power to withhold his approval of the investment of trust funds in his hands, may exercise the lesser authority and allow the investment upon condition that the property into which the proceeds are converted shall be impressed with a like control. See Sunder-land v. United States, 266 U.S. 226, 234, 235, 45 S.Ct. 64, 69 L.Ed. 259. It has also been held that a county court having jurisdiction over the guardianship of Indian minors could require that such a restrictive clause be inserted in a deed to lands purchased with funds of an Indian minor derived from a sale of restricted lands. See United States v. Brown, 8 Cir., 8 F.2d 564. We are of the opinion that the situation here presented is analogous and that the county court, having power to withhold approval, may grant that approval upon conditions imposed for the protection of the full-blood Indian heir. Furthermore, we do not" }, { "docid": "13498885", "title": "", "text": "Poloke died testate in the year 1925 and her allotment and the funds in the custody of the Secretary of the Interior derived from royalties under the lease of said allotment passed by devise and bequest to her daughter, Suma Burgess. Since Suma Burgess took by devise and bequest and not by inheritance, the property passed to her freed of restrictions. Cf. Parker v. Richard, 250 U.S. 235, 39 S.Ct. 442, 63 L.Ed. 954; Whitchurch v. Section 6 of the Act of January 27, 1933, 47 Stat. 777, 778, in part reads: Crawford, 10 Cir., 92 F.2d 249. Whether the effect of the Act of April 12, 1926, was to reimpose restrictions upon such property we deem it unnecessary to determine. Even if such restrictions were reimposed, the declaration of trust was valid, having been approved by the county court having jurisdiction of the. settlement of the estate of Lucy Poloke, and by the Secretary of the Interior. Section 1 of the Act of May 27, 1908, 35 Stat. 312, authorized the Secretary of the Interior to remove restrictions “under such rules and - regulations concerning * * * disposal of the proceeds” from the sale or lease of restricted lands for the benefit of the respective Indians as he might prescribe. The Act of January 27, 1933, 47 Stat. 777, which empowered the Secretary of the Interior, in his discretion and subject to his approval, to permit any Indian of the Five Civilized Tribes over the age of 21 years, having restricted funds or other property subject to the supervision of the Secretary of the Interior, to create and establish out of such funds or property, trusts for the benefit of such Indian, his heirs, or other beneficiaries designated by him, did not undertake to invalidate such trusts theretofore entered into with the approval of the Secretary of the Interior. See 47 Stat. 778. We also deem it unnecessary to determine whether the codicil of Suma Burgess dated July 7, 1934, was ineffectual either because the declaration of trust was irrevocable or because approval of the codicil by the" }, { "docid": "15646095", "title": "", "text": "Coalition Mines Co. v. Silver King C. M. Co. (C. C. A. 8) 204 F. 166, Ann. Cas. 1918B, 571. III. The Jurisdiction of the Federal Court. The Hosey-Guthrie Group contend that the case was improperly removed, and that the Federal court is without jurisdiction. They assert that on the death of Ullie Eagle the land in question ceased to be restricted, and therefore that no restricted member of the Five Civilized Tribes in Oklahoma, or restricted heir or grantee of such Indian was party as “plaintiff, defendant, or intervener ** * * claiming * * * title to or an interest in lands allotted to a citizen of the Five Civilized Tribes.” It was alleged in the notice and in the petition for removal that a largo number of persons who were either parties defendant or interveners were restricted members of the Five Civilized Tribes and claimed some right, title, and interest in such land. This allegation is not challenged either by pleading or proof. At the time of the filing of the petition for removal, Lizzie Tiger née Gambler, and Isla Wolf were parties to the action. The notice and petition for removal alleged that they were'restrieted members of the Five Civilized Tribes, ■ The proof shows that both were enrolled full-blood citizens of the Creek Tribe. Lands passing to full-blood heirs remain under qualified restrictions by virtue of section 9 of the Act of May 27, 1908 (35 Stat. 312, 315); Parker v. Richard, 250 U. S. 235, 39 S. Ct. 442, 63 L. Ed. 954; United States v. Gypsy Oil Co. (C. C. A. 8) 10 F.(2d) 487; Holmes v. United States (C. C. A. 10) 53 F. F.(2d) 960. Thus it will be seen that there were parties to the action who were clearly within the class designated-in section 3, supra. -. ■ The Hosey-Guthrie Group assert that section 3, \"supra, does not of itself give á 'Federal court jurisdiction on removal, but that other independent grounds of Federal jurisdiction must exist. Such a construction is contrary to the express terms of section 3, supra," }, { "docid": "22988798", "title": "", "text": "Act of May 27, 1924, 43 Stat. 176; Act of May 29, 1924,43 Stat. 244; Act of April 17, 1937, 50 Stat. 68. There are various other expressions of Congressional understanding on this point. For example, H. Rep. No. 2415, 71st Cong., 3d Sess., p. 1, advocating passage of what is now the Act of February 14, 1931, 46 Stat. 1108, declares: “Under existing law the restricted allotted lands of Indians of the Five Civilized Tribes are tax exempt while restricted.” See also S. Rep. No. 982, 70th Cong., 1st Sess., pp. 3, 4, 5; S. Rep. No. 330, 65th Cong., 2d Sess., p. 4. The Act of May 27, 1908, 35 Stat. 312, by specifically providing in § 4 that lands from which “restrictions have been or shall be removed shall be subject to taxation,” strongly indicates a Congressional understanding that restriction amounted to tax exemption. For example, among the statutes applicable to the Creeks and Seminóles, see §§ 3 and 4 of the Act of May 10, 1928, 45 Stat. 495 and 733. See generally the statutes collected in Note 11, supra. Act of July 1, 1898, 30 Stat. 567; Act of March 1, 1901, 31 Stat. 861; Act of June 30,1902, 32 Stat. 500; § 19 of Act of April 26, 1906, 34 Stat. 137; § 4 of the Act of May 10,1928,45 Stat. 495 and 733. See Sen. Doc. 169, 58th Cong., 2d Sess. It is for this historical reason that cases such as Superintendent v. Commissioner, 295 U. S. 418, and Landman v. Commissioner, 123 F. 2d 787, have no bearing upon a consideration of the effect of restrictions upon the power of a state to tax. See Act of July 1,1898, 30 Stat. 567; Act of March 1,1901,31 Stat. 861; Act of June 30,1902, 32 Stat. 500. Act of April 26,1906,34 Stat. 137; Act of May 10,1928,45 Stat. 495. Since 1908 the regulations prescribed by the Secretary under § 2 of the Act of 1908, 35 Stat. 312 and related statutes governing oil, gas and other mining leases of restricted lands, have recognized that" }, { "docid": "12337867", "title": "", "text": "whose incomes were not subject to federal income taxes, and therefore the receiver was not required to make returns and pay taxes on the income that had accumulated in trust in his hands. Thlocco was a full-blood Creek Indian and therefore the allotment was restricted. He died about 1900. Upon his death, under section 9, Act May 27, 190!?. (35 Stat. 315), the general restrictions wers, removed. If the allotment passed to a full-blood Indian heir or if Thlocco left surviving issue born after March 4, 1906, qualified restrictions were continued. Holmes v. United States (C. C. A. 10) 53 F.(2d) 960; United States v. Gypsy Oil Co. (C. C. A. 8) 10 F. (2d) 487, 489, 490; Parker v. Richard, 250 U. S. 235, 238, 239, 39 S. Ct. 442, 63 L. Ed. 954; Harris v. Bell, 254 U. S. 103, 41 S. Ct. 49, 65 L. Ed. 159. It is not shown that there were any such heirs or issue claiming under Thlocco. Whether income from lands allotted to a full-blood Creek Indian, after descent to and while in the ownership of such heirs or issue, would be exempt from federal income tax, we do not stop to determine, because we think the status of the persons asserting claims of heirship is beside the question. Under section 2 (b) and section 219 the fiduciary, not the beneficiary, is the taxpayer. Furthermore, if the matter is to be approached prospectively and in the light of the receiver’s knowledge, then it must follow that the receiver, not knowing whom the beneficiary was, could not assert the income was exempt on account of the beneficiary’s status. On the other hand, if the matter is to be approached retrospectively and in the light of the ultimate determination of whom the beneficiaries were, then it must follow that the income belonged to Owens and Brazell, who occupied no exempt status. We conclude that the income received by the receiver, which arose after Owens and Brazell acquired their interests and after September 8, 1916, was “income accumulated in trust for the benefit of *" }, { "docid": "21344432", "title": "", "text": "of the act became effective sixty days from its date. The -period of restriction was extended 2C> years from April 26, 1931, by the Act of May 10,1928 (45 Stat. 495). Pitman, Jr., being a half-blood, it follows-that section 1, supra, removed all restrictions on that portion of his allotment other than the homestead. On -the removal of such restrictions, sueh lands and the income therefrom became subject to taxation under the-provisions of section 4 of such act. Section 9, supra, deals with lands restricted at the-time of the allottee’s death, and not with lands from which restrictions had been theretofore-removed. It did not on the death of Pitman, Jr., reimpose restrictions upon the surplus lands from which restrictions had theretofore been removed. The homestead portion of the allotment, however, remained subject to the restrictions provided by section 1, supra, until the death of Pitman, Jr., the original allottee. Upon his death it passed by inheritance to the petitioner, a full-blood Indian heir, and became subject to the qualified restrictions imposed by section 9, supra, and remained exempt from taxation. Parker v. Richard, 250 U. S. 235, 238, 39 S. Ct. 442, 63 L. Ed. 954; Marcy v. Board of Commissioners, 45 Okl. 1, 144 P. 611; United States v. Shock (C. C. Okl.) 187 F. 870. We conclude, therefore, that the homestead remained restricted and exempt from taxation, and that the surplus allotment-became freed of restrictions and subject to taxation from and after sixty days from May 27, 1908. The income received hy the lessor from an oil and gas lease, whether by way of an initial bonus or as royalties on the oil and gas subsequently produced by the lessee, is taxable not as gain from the sale of capital assets, but as ordinary income. Burnet v. Harmel, 287 U. S. 103, 53 S. Ct. 74, 77 L. Ed. -; Alexander v. King (C. C. A. 10) 46 F.(2d) 235, 74 A. L. R. 174. The contracts entered into between the petitioner and the oil companies in March, 1922, were leases, not sales of oil and gas rights," }, { "docid": "15646096", "title": "", "text": "for removal, Lizzie Tiger née Gambler, and Isla Wolf were parties to the action. The notice and petition for removal alleged that they were'restrieted members of the Five Civilized Tribes, ■ The proof shows that both were enrolled full-blood citizens of the Creek Tribe. Lands passing to full-blood heirs remain under qualified restrictions by virtue of section 9 of the Act of May 27, 1908 (35 Stat. 312, 315); Parker v. Richard, 250 U. S. 235, 39 S. Ct. 442, 63 L. Ed. 954; United States v. Gypsy Oil Co. (C. C. A. 8) 10 F.(2d) 487; Holmes v. United States (C. C. A. 10) 53 F. F.(2d) 960. Thus it will be seen that there were parties to the action who were clearly within the class designated-in section 3, supra. -. ■ The Hosey-Guthrie Group assert that section 3, \"supra, does not of itself give á 'Federal court jurisdiction on removal, but that other independent grounds of Federal jurisdiction must exist. Such a construction is contrary to the express terms of section 3, supra, and would make the removal provision thereof superfluous and useless. We adhere to our conclusions reached in Fish v. Kennamer (C. C. A. 10) 37 F.(2d) 243, where we held this action was properly removed. IV. Certain Procedural Questions. The Hosey-Guthrie Group contends that the court erred in refusing to strike the cross-petitions. In their petition they set up two causes of action, one at law in ejectment; and the other for recovery of mesne profits, equitable in its nature. Wythe v. Myers, 30 Fed. Cas. 766, No. 18,119; Pengra v. Munz (C. C. Or.) 29 F. 830; Larned v. Hudson, 57 N. Y. 151. The applicable Oklahoma statutes are sections 219, 224, 225* and 466, C. O. S. 1921, and are set out in marginal Note . In those jurisdictions where the code system of pleading prevails, a defendant in ejectment who is in possession of the land, where affirmative relief is needed to establish his title or where for some other reason he has no adequate remedy at law, may set up an" }, { "docid": "15199757", "title": "", "text": "then descend to the heirs, according to the laws 'of descent and distribution of the State of Oklahoma, free from all restrictions: Provided, That the word ‘issue’ as used in this section shall be construed to mean child or children: Provided further, That the provisions of section 23 of the Act of April 26, 1906, as amended by this Act, are hereby made applicable to all wills executed under this section.” In Parker v. Richard, 250 U.S. 235, 238, 39 S.Ct. 442, 444, 63 L.Ed. 954, it is said: “In exact words it puts full-blood Indian heirs in a distinct and excepted class and forbids any conveyance of any interest of such an heir in such land unless it be approved by the court named. In other words, as to that class of heirs the restrictions are not removed but merely relaxed or qualified to the extent of sanctioning such conveyances as receive the court’s approval. Conveyances without its approval fall within the ban of the restrictions.” In the second proviso, homestead allotments of deceased allottees of one-half or more Indian blood, where such allottee leaves issue born after March 4, 1906, remain restricted and inalienable for the use and support of such issue during his, her, or their lifetime but not beyond April 26, 1931. Section 1 of Act of May 10, 1928 (45 Stat. 495),.extends restrictions against alienation, lease, mortgage, or other encumbrance of the lands allotted to members of the Five Civilized Tribes in Oklahoma, enrolled as of one-half or more Indian blood, for an additional period of twenty-five years from and including April 26, 1931; with the proviso that the Secretary of the Interior shall have the authority to remove the restrictions, upon the applications of the Indian owners of the land, and may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. In section 2 thereof the provisions of section 9 of Act of May 27, 1908 (35 Stat. 312), entitled: “An" }, { "docid": "22455139", "title": "", "text": "26, 1906, § 19, 34 Stat. 137, 144; Act of May 27, 1908, §§ 4, 9, 35 Stat. 312, 313, 315; Act of April 12, 1926, 44 Stat. 239; Act of May 10, 1928, 45 Stat. 495; Act of May 24, 1928, 45 Stat. 733; Act of March 2, 1931, 46 Stat. 1471; Act of June 30, 1932, 47 Stat. 474; Act of January 27, 1933, 47 Stat. 777. See Note 3, ante. See H. Rep. 562, S. Rep. 332, 75th Cong., 1st Sess. S. Rep. 332, 75th Cong., 1st Sess. The Secretary approved respondents’ designation. See Note 12, ante. See United States v. Kagama, supra; Choctaw Nation v. United States, 119 U. S. 1, 27; Stephens v. Cherokee Nation, 174 U. S. 445, 486; Lone Wolf v. Hitchcock, 187 U. S. 553, 566-68; Tiger v. Western Investment Co., 221 U. S. 286, 310-17; United States v. Sandoval, 231 U. S. 28, 45-47; Brader v. James, 246 U. S. 88, 96; Sunderland v. United States, 266 U. S. 226, 233-34; United States v. Ramsey, 271 U. S. 467, 469, 471; United States v. McGowan, 302 U. S. 535, 538-39; Board of Comm’rs v. United States, 308 U. S. 343, 349. Wosey John Deere received her allotment under an agreement negotiated with the Creeks by the Dawes Commission and incorporated into the Act of March 1, 1901, 31 Stat. 861, as amended by the supplemental agreement of June 30, 1902, 32 Stat. 500. See also § 19 of the Act of April 26, 1906, 34 Stat. 137, 144; Act of May 27, 1908, 35 Stat. 312; and Act of May 10, 1928, 45 Stat. 495. Allotments in severalty were halted by the Wheeler-Howard Act of June 18, 1934, 48 Stat. 984, and by the Oklahoma Welfare Act of June 26, 1936, 49 Stat. 1967. These and other recent statutes reflect a change in policy, the theory of which is that Indians can better meet the problems of modern life through corporate, group, or tribal action, rather than as assimilated individuals. Tbe land involved in the Rickert case was a trust allotment," }, { "docid": "8005070", "title": "", "text": "The Supreme Court decision is the law of the case. Banco Nacional de Cuba v. Farr, 2 Cir., 383 F.2d 166, 177-178 and cases there cited, cert. denied 390 U.S. 956, 88 S.Ct. 1038, 20 L.Ed.2d 1151. The rule that a lower court must follow the decision of a higher court at an earlier stage of the case applies to everything decided “either expressly or by necessary implication.” Munro v. Post, 2 Cir., 102 F.2d 686, 688; see also The Santa Maria, 10 Wheat. 431, 442-445, 23 U.S. 431, 6 L.Ed. 359, and Briggs v. Pennsylvania Railroad Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403. We believe that the question of ownership, both past and present, was decided in favor of the Indians by the Supreme Court and' may not now be relitigated. If we are wrong in what we believe to be the fair import of the Supreme Court decision, consideration must be given to claims now asserted by Oklahoma and its lessees. Divestiture is claimed on the ground that the Indians received title to the bed in their sovereign capacity as a public trust for the common benefit, that sovereignty was lost prior to Oklahoma’s statehood, that the bed reverted to the United States, and that title passed to Oklahoma under the equal footing doctrine upon its admission to the Union in 1907. Loss of sovereignty is said to have occurred by reason of the Act of March 3, 1893, 27 Stat. 612, 645, creating the Dawes Commission; the following negotiations for the extinguishment of tribal titles; the Act of June 28, 1898, 30 Stat. 495, 505, providing for the allotment of Choctaw lands; the agreement with the Choctaws for land allotment and the nullification of inconsistent treaties, Act of July 1, 1902, 32 Stat. 641; a similar agreement with the Cherokees, Act of July 1, 1902, 32 Stat. 716; and the Act of April 26, 1906, 34 Stat. 137, which provides for the final disposition of the affairs of the Five Civilized Tribes. The mentioned statutes did eliminate whatever sovereignty the Indians then had." } ]

[ { "docid": "22650212", "title": "", "text": "“[i]sn’t that how it would work out if everything was according to the defendant’s presentation?” After the probation officer agreed, the district court announced that it intended to depart to this sentencing range. Following brief additional argument, the court adopted a downward variance and sentenced Carter to a five-year term of probation, 200 hours of community service, and a $1000 fine. The Government noted a timely appeal of this sentence. II. In reviewing any sentence, “whether inside, just outside, or significantly outside the Guidelines range,” we apply a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). We must first “ensure that the district court committed no significant procedural error.” Id. at 597. If, and only if, we find the sentence procedurally reasonable can we “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id.; see also United States v. Stephens, 549 F.3d 459, 465 (6th Cir.2008). Procedural errors include “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. When rendering a sentence, the district court “must make an individualized assessment based on the facts presented.” Id. (emphasis added). That is, the sentencing court must apply the relevant § 3553(a) factors to the specific circumstances of the case before it. Such individualized treatment is necessary “to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Id. at 598 (citation omitted). Moreover, the district court must “state in open court” the particular reasons supporting its chosen sentence. 18 U.S.C. § 3553(c) (2006). In doing so, “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal" } ]

[ { "docid": "22850273", "title": "", "text": "issue here, but it also rejected one of the foundational principles of the Guidelines themselves — proportionality in sentencing, which “match[es] punishment with culpability.” United States v. Miller, 316 F.3d 495, 503 (4th Cir.2003). While this sort of wholesale rejection of the Guidelines might be permissible post-Booker, it would require a significantly more detailed explanation than given by the district court here. B. In addition to failing to explain its rejection of the Guidelines, the district court also failed to sufficiently explain the sentences imposed. A district court commits procedural error requiring remand when it fails to justify an aspect of a defendant’s sentence “with an individualized rationale.” United States v. Carter, 564 F.3d 325, 328-29 (4th Cir.2009). The sentencing court “must make an individualized assessment based on the facts presented” when imposing a sentence, “applying] the relevant § 3553(a) factors to the specific circumstances of the case” and the defendant, and must “state in open court the particular reasons supporting its chosen sentence.” Id. at 328 (internal quotation marks omitted). “[A] district court’s explanation of its sentence need not be lengthy, but the court must offer some individualized assessment justifying the sentence imposed and rejection of arguments for a higher or lower sentence based on § 3553.” United States v. Lynn, 592 F.3d 572, 584 (4th Cir.2010) (internal quotation marks omitted). The sentencing court’s stated rationale must be “tailored to the particular case at hand and adequate to permit meaningful appellate review.” Carter, 564 F.3d at 330 (internal quotation marks omitted). In imposing a variance sentence, the district court “must consider the extent of the deviation and ensure that the justification is significantly compelling to support the degree of the variance---- [I]t [is] uncontroversial that a major departure should be supported by a more significant justification than a minor one.” Gall, 552 U.S. at 50, 128 S.Ct. 586. In this case, the district court provided the opposite of individualized sentences and explanations. As noted above, the court determined that the Guideline underpunished the crime and that each defendant should receive the same sentence. Thus, except for offering its view" }, { "docid": "22724042", "title": "", "text": "serious breaches of trust — the type of breaches that are explicitly contemplated as the reasons for imposing a revocation sentence. See U.S.S.G., ch. 7, pt. A, cmt. 3(b). Moulden contends that the district court insufficiently analyzed the § 3553(a) factors and therefore erred procedurally in imposing Moulden’s sentence. We disagree. We have repeatedly said post-Booker that a court need not “robotically tick through § 3553(a)’s every subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th Cir.2006); see also United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir.2006). A court must, however, provide a sufficient explanation so that we may effectively review the reasonableness of the sentence. Montes-Pineda, 445 F.3d at 380. That explanation should also provide us an assurance that the sentencing court, considered the § 3553(a) factors with regard to the particular defendant before him, and also considered any potentially meritorious arguments raised by the parties with regard to sentencing. Id. In this case, the district court made explicit the reasons for its departure from the Chapter 7 policy statement range. These reasons included: Moulden’s repeated decisions not to comply with the conditions set by the court, Moulden’s need to learn to act under the rules of society and the court, his “flaunt[ing]” of the rules and requirements of probation, and the need for Moulden to learn and rehabilitate himself after a series of “seri ous” probation violations. Even if not couched in the precise language of § 3553(a), each of these reasons can be matched to a factor appropriate for consideration under that statute and was clearly tied to Moulden’s particular situation. Moulden advanced before the district court the same arguments he has made on appeal — primarily that, apart from some minor missteps, Moulden had made positive advancements towards successful rehabilitation — and the district court considered all of these arguments prior to selection of a sentence. In short, the district court articulated clear and appropriate reasons under § 3553(a). Finally, Moulden challenges the substantive reasonableness of his sentence. The sentence imposed was substantial in light of the three to nine month range suggested" }, { "docid": "18099971", "title": "", "text": "record from the oral sentencing was ambiguous, therefore, we conclude that the written Statement of Reasons does not give rise to the inference that the district court departed under the Guidelines. The record makes clear that the court intended to vary from the Guidelines range. III. Alternatively, Denny argues that the 60-month sentence imposed by the district court was proeedurally and substantively unreasonable. This court reviews sentences for both procedural and substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A. Procedural unreasonableness may occur when a sentencing court “fail[s] to calculate (or improperly calculates]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, selects] a sentence based on clearly erroneous facts, or failfs] to adequately explain, the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. Denny puts forward two claims with regard to procedural unreasonableness. The first is that the district court “failed to adequately explain its sentencing decision.” The Supreme Court has held that a “sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has reasoned a basis for exercising his own legal decision-making authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). However, this court has emphasized that a district court “need not recite” the § 3553 factors when it imposes a sentence. Unit ed States v. Hernandez-Fierros, 453 F.3d 309, 312 (6th Cir.2006) (internal quotation marks omitted). “[T]he crucial question is whether the record makes clear that the sentencing judge listened to each argument, considered the supporting evidence, was fully aware of the defendant’s circumstances and took them into account in sentencing him.” United States v. Wallace, 597 F.3d 794, 804 (6th Cir.2010) (internal quotation marks omitted). The record clearly indicates that the sentencing judge took Denny’s claims under consideration. Indeed, the court found some of his arguments persuasive and adjusted both the offense level and" }, { "docid": "22786368", "title": "", "text": "clarify our standard of review for such findings. .We review a district court’s ultimate decision to revoke a defendant’s supervised release for abuse of discretion. United States v. Copley, 978 F.2d 829, 831 (4th Cir.1992). But, like our sister circuits, we review a district court’s factual findings underlying a revocation for clear error. See United States v. Preacely, 702 F.3d 373, 375-76 (7th Cir.2012); United States v. Oquendo-Rivera, 586 F.3d 63, 67 (1st Cir.2009). Of course, reliance on a clearly erroneous material fact itself constitutes an abuse of discretion. See United States v. Zayyad, 741 F.3d 452, 458 (4th Cir.2014). We will not disturb a district court’s revocation sentence unless it falls outside the statutory maximum or is otherwise “plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 437 (4th Cir.2006). Only if a revocation sentence is unreasonable must we assess whether it is plainly so. United States v. Moulden, 478 F.3d 652, 656 (4th Cir.2007). In determining whether a revocation sentence is unreasonable, we strike “a more deferential appellate posture” than we do when reviewing original sentences. Id. (internal quotation marks and citation omitted). Nonetheless, “the [same] procedural and substantive considerations” that guide “our review of original sentences” inform our review of revocation sentences as well. Crudup, 461 F.3d at 438. The sentencing court “must consider” both the policy statements and the applicable policy statement range found in Chapter 7 of the Sentencing Guidelines, manual, as well as “the applicable [18 U.S.C.] § 3553(a) factors.” Moulden, 478 F.3d at 656; see also United States v. Webb, 738 F.3d 638, 641 (4th Cir.2013). A sentence within the policy statement range is “presumed reasonable,” Webb, 738 F.3d at 642, though “the sentencing court retains broad discretion to ... impose a term of imprisonment up to the statutory maximum,” Moulden, 478 F.3d at 657. III. Padgett challenges only the district court’s finding that he possessed a firearm and its imposition of what he contends is a plainly unreasonable revocation sentence. Both arguments fail. A. At the revocation hearing, the Government offered three witnesses to support the firearm allegation. First, Deputy J.W. Eary" }, { "docid": "15538110", "title": "", "text": "Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Emmanuel Washington appeals the district court’s judgment imposing a 27-month prison sentence upon the revocation of his supervised release. Although Washington does not contest the revocation on appeal, he maintains that the district court’s sentence is not reasonable as it was premised upon an improper calculation of the Chapter Seven policy statement range, see U.S. Sentencing Guidelines Manual (“USSG”) (2007), because the state crimes for which he was convicted do not fit the criteria for a Grade A violation. He also contends that the district court impermis-sibly considered testimonial hearsay, in violation of the Sixth Amendment’s Confrontation Clause, and erred in considering conduct for which he was acquitted in state court. Finally, he argues that the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and to provide a sufficient explanation for the 27-month sentence. We affirm. We review a sentence imposed after revocation of supervised release to determine whether it is plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437-40 (4th Cir.2006). The first step in this analysis is whether the sentence was unreasonable. Id. at 438. In conducting this review, this court follows generally the procedural and substantive considerations employed in reviewing original sen tences. Id. The district court commits procedural error by improperly calculating the Guidelines. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). In assessing whether the district court properly applied the Guidelines, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, — U.S. -, 128 S.Ct. 2525, 171 L.Ed.2d 805 (2008). For mixed questions of law and fact, we apply a due deference standard in reviewing the district court. Id. Although the district court must consider the policy statements in Chapter Seven of the Sentencing Guidelines and the statutory factors in § 3553(a) and 18 U.S.C. § 3583, “the court ultimately has broad discretion to revoke its previous" }, { "docid": "22808447", "title": "", "text": "district court must select a sentence based on an “individualized assessment” of the facts presented. Gall, 552 U.S. at 50, 128 S.Ct. 586. Every sentence requires an adequate explanation. United States v. Hernandez, 603 F.3d 267, 271 (4th Cir.2010). When the district court imposes sentence within the Guidelines, “the explanation need not be elaborate or lengthy.” Id. However, when a district court applies a departure provision or variance from the Guidelines range based upon the 18 U.S.C. § 3553(a) factors, “the district court must give ‘serious consideration to the extent’ of the departure or variance, and ‘must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.’” United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir.2011) (quoting Gall, 552 U.S. at 46, 50, 128 S.Ct. 586). The district court must “state in open court” the particular reasons supporting its chosen sentence. 18 U.S.C. § 3553(c). King’s argument that he received a procedurally unreasonable sentence is refuted by the record before us. At the sentencing hearing, the district court stated its reasons for the chosen sentence and its decision to grant; the upward variance, which plainly were based on the court’s primary concerns regarding King’s extensive criminal history at the age of 26, and his pattern of increasing violence. The district court observed that King “has two juvenile convictions, [and] ten adult convictions, four of which are violent convictions.” In addition to those convictions, the district court referred to multiple instances in which King disregarded the terms of his bond and his probation. The district court further expressed its determination that “[King’s] violence is increasing.” In support of this conclusion, the district court referenced: 1) King’s conviction in 2003 for failure to stop for a “blue light;” 2) his conviction in 2005 for pointing and presenting a firearm at another; 3) his conviction in 2007 for the present offense, unlawful possession of a firearm by a felon, which the court noted was based upon conduct which “involve[d] guns and violence;” and 4) King’s criminal activity in 2007, about which the court" }, { "docid": "22102011", "title": "", "text": "light of all of the factors stated in 18 U.S.C. § 3553(a). Id. at 49-50, 128 S.Ct. 586. The court must then select a sentence within or outside the Guidelines range, based on an “individualized assessment” of the facts presented. Id. at 50, 128 S.Ct. 586. And finally, the court must “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. In this case, Hernandez argues that his sentence was procedurally unreasonable because the district court did not “adequately explain the chosen sentence,” citing Gall and United States v. Carter, 564 F.3d 325, 328-30 (4th Cir.2009). See also United States v. Engle, 592 F.3d 495, 500 (4th Cir.2010) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). In Carter, we held that a sentence was procedurally unreasonable when the district court failed to make an individualized assessment on the facts presented and to state the particular reasons for a sentence that varied downward from an advisory Guidelines range of 37 to 46 months’ imprisonment to a sentence of probation and community service. Indeed, we noted that the requirement for an “adequate explanation” exists when imposing any sentence, whether above, below, or within the recommended Guidelines range. Id. at 330. Although every sentence requires an adequate explanation, a more complete and detailed explanation of a sentence is required when departing from the advisory Sentencing Guidelines, and “‘a major departure should be supported by a more significant justification than a minor one.’ ” United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.2010) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). When imposing a sentence within the Guidelines, however, the explanation need not be elaborate or lengthy “because guidelines sentences themselves are in many ways tailored to the individual and reflect ‘approximately two decades of close attention to federal sentencing policy.’” United States v. Johnson, 587 F.3d 625, 639 (4th Cir.2009) (quoting United States v. Johnson, 445 F.3d 339, 342 (4th Cir.2006)); see also Carter, 564 F.3d at 330 (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). Generally, an adequate" }, { "docid": "12925889", "title": "", "text": "to arrive at a sensible starting point. 604 F.3d at 7. In sum, under de novo review, we determine that the district court made an individualized determination, and we do not find that the district court clearly erred in calculating Appellant’s sentence according to the Sentencing Guidelines to determine that Appellant was individually responsible for at least 4.5 kilograms of crack cocaine. Appellant’s first claim of error thus fails. B. The Reasonableness of Appellant’s Sentence 1. Standard / Scope of Review We review the reasonableness of a criminal sentence under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “In reviewing a sentence, we seek to ensure that it is both procedurally sound and substantively reasonable.” United States v. Dávilar-González, 595 F.3d 42, 47 (1st Cir.2010) (citation omitted). A sentence is procedurally sound so long as the district court did not commit a procedural error in arriving at the sentence. Examples of procedural errors include: “failing to calculate (or impropeiiy calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the section 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. We must first determine that the district court committed no significant procedural error and then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. Id. When conducting this review, we take into account the totality of the circumstances, including the extent of any variance from the GSR. Id. “[T]he linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible overall result.” United States v. Martin, 520 F.3d 87, 96 (1st Cir.2008). 2. Analysis First, Appellant argues that the sentencing court made a procedural error by not giving appropriate weight to the § 3553(a) factors he raised. Among other factors, defense counsel argued at the sentencing hearing that Appellant came from a very-dysfunctional family, which steered him towards a life of crime from an early" }, { "docid": "10780716", "title": "", "text": "Although a court need not necessarily issue a comprehensive, detailed opinion, the court’s explanation must nonetheless be sufficient “to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (“After settling on the appropriate sentence, [the district court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”). District courts’ sentencing discretion is “sizeable,” Abu Ali, 528 F.3d at 266, and our review on appeal is limited to determining whether the sentence imposed is reasonable, see Gall, 552 U.S. at 51, 128 S.Ct. 586. Our reasonableness review has procedural and substantive components. The procedural component, the one at is sue in this case, obligates us to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range. Id. Here, as we have explained, the error alleged is that the district court committed procedural error by failing to adequately explain its decision not to impose a below-guidelines sentence. We have held that arguments made under § 3553(a) for a sentence different than the one that is eventually imposed are sufficient to preserve claims that the district court erred in not adequately explaining its- rejection of the sentencing arguments. See United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir.2010); United States v. Grier, 475 F.3d 556, 571 n. 11 (3d Cir.2007) (en banc) (“Am objection to [an inadequate explanation] will be preserved if, during sentencing proceedings, the defendant properly raised a meritorious factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. § 3553(a).”). Because Boulware argued" }, { "docid": "20713470", "title": "", "text": "that is something less than knowledge. Finally, we note that we have approved the giving of this instruction “ ‘to show a conspirator’s knowledge of the unlawful aims of a conspiracy.’ ” Williams, 612 F.3d at 508 (quoting United States v. Warshawsky, 20 F.3d 204, 210 (6th Cir.1994), superseded on other grounds as stated in United States v. Myint, 455 Fed.Appx. 596, 604 (6th Cir.2012)). B. Sentencing Mr. Mitchell raises also various objections to the sentence imposed by the district court. We review his sentence for reasonableness, both procedural and substantive, for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Cunningham, 669 F.3d 723, 728 (6th Cir.2012). We must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [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, 552 U.S. at 51, 128 S.Ct. 586; see also Cunningham, 669 F.3d at 728 (“Procedural reasonableness review begins with a robust review of the factors evaluated and the procedures employed by the district court in reaching its sentencing deter mination.” (internal quotation marks omitted)). We then consider the substantive reasonableness of the sentence under the totality of the circumstances. Gall, 552 U.S. at 51, 128 S.Ct. 586. “A sentence is substantively unreasonable if the sentencing court arbitrarily selected the sentence, based the sentence on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.” Cunningham, 669 F.3d at 733. We give deference to the district court’s sentence to the extent it is justified by the § 3553(a) factors, and we may presume that a within-guidelines sentence is reasonable. Id. 1. Procedural Reasonableness Mr. Mitchell contends that the district court erred by failing to depart downward under United States Sentencing Guideline § 5H1.6, the" }, { "docid": "22102010", "title": "", "text": "acknowledges that he “failed to raise an objection to his sentencefing] in the district court” and did not argue for a sentence different from the one he received. See United States v. Lynn, 592 F.3d 572, 580 (4th Cir.2010). The sentencing structure since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), when the Sentencing Guidelines became advisory, and Rita, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203, and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), when the sentencing procedure was particularized, is now well established. In imposing a sentence, a court must comply with both procedural requirements and substantive standards. As a matter of procedure, the district court must begin its sentencing proceeding “by correctly calculating the applicable Guidelines range.... [T]he Guidelines should be the starting point and the initial benchmark.” Gall, 552 U.S. at 49, 128 S.Ct. 586. The court must thereafter give the parties the opportunity to argue for whatever sentence they deem appropriate and consider those arguments in light of all of the factors stated in 18 U.S.C. § 3553(a). Id. at 49-50, 128 S.Ct. 586. The court must then select a sentence within or outside the Guidelines range, based on an “individualized assessment” of the facts presented. Id. at 50, 128 S.Ct. 586. And finally, the court must “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. In this case, Hernandez argues that his sentence was procedurally unreasonable because the district court did not “adequately explain the chosen sentence,” citing Gall and United States v. Carter, 564 F.3d 325, 328-30 (4th Cir.2009). See also United States v. Engle, 592 F.3d 495, 500 (4th Cir.2010) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). In Carter, we held that a sentence was procedurally unreasonable when the district court failed to make an individualized assessment on the facts presented and to state the particular reasons for a sentence that varied downward from an advisory Guidelines range of 37 to 46 months’ imprisonment to" }, { "docid": "22678006", "title": "", "text": "him to eighty months’ imprisonment followed by eight years of supervised release. As to the supervised release violation, the government pressed the court for a “significant sentence” at the high end of Webb’s Guidelines range, noting that Webb previously had benefitted from a U.S.S.G. § 5K1.1 motion but that he was caught selling drugs thirteen months later. Webb’s counsel conceded that the violation was “troubling,” given that it occurred shortly after Webb was released, but requested that the court impose a sentence near the low end of the Guidelines range. Concluding that Webb’s conduct constituted a Grade A violation, the court revoked the term of supervision and sentenced Webb to thirty-two months’ imprisonment to run consecutively to any other federal or state sentence. In doing so, the court explained the rationale for its sentence as follows: After considering the evidence and argument from the government and the defendant, the specific sentence recommended includes the nature and circum-' stances, the seriousness of the violation, provides just punishment, reveals the history and characteristics of the defendant, promotes respect for the conditions of supervision imposed by the court, and affords adequate deterrence to noncompliant behavior, and provides protection from the public from further crimes of the defendant. The district court also noted that the thirty-two month sentence was appropriate in light of Webb’s continued pattern of committing drug offenses. Webb did not object to the district court’s revocation sentence. He now appeals, contending that the thirty-two month sentence imposed upon revocation of his supervised release is plainly unreasonable. II. A. A district court has broad discretion when imposing a sentence upon revocation of supervised release. United States v. Thompson, 595 F.3d 544, 547 (4th Cir.2010). We will affirm a revocation sentence if it is within the statutory maximum and is not “plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 438 (4th Cir.2006). In making this determination, we first consider -whether the sentence imposed is procedurally or substantively unreasonable. Id. at 438-39. Only if we find the sentence unreasonable must we decide “whether it is ‘plainl/ so.” United States v. Moulden, 478 F.3d" }, { "docid": "10780717", "title": "", "text": "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. Id. Here, as we have explained, the error alleged is that the district court committed procedural error by failing to adequately explain its decision not to impose a below-guidelines sentence. We have held that arguments made under § 3553(a) for a sentence different than the one that is eventually imposed are sufficient to preserve claims that the district court erred in not adequately explaining its- rejection of the sentencing arguments. See United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir.2010); United States v. Grier, 475 F.3d 556, 571 n. 11 (3d Cir.2007) (en banc) (“Am objection to [an inadequate explanation] will be preserved if, during sentencing proceedings, the defendant properly raised a meritorious factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. § 3553(a).”). Because Boulware argued that the § 3553(a) factors warranted a below-guidelines sentence, the issue is properly preserved, and we therefore apply harmless-error review in considering whether Boulware’s alleged procedural error warrants reversal. See Lynn, 592 F.3d at 579. Under that standard, the government may avoid reversal only if it demonstrates that the error “did not have a substantial and injurious effect or influence on the” result and “we can [] say with ... ‘fair assurance,’ ... that the district court’s explicit consideration of [the defendant’s] arguments would not have affected the sentence imposed.” Id. at 585 (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (internal quotation marks omitted)). We conclude that the government has satisfied that burden here. That any error here would be harmless is best demonstrated by comparison of this case to one of the consolidated cases in Lynn. In that case, Lynn was convicted of possessing with intent to distribute, and conspiring to distribute, over 100 grams of heroin. See 21 U.S.C.A. §§ 841(a), 846 (West 1999)." }, { "docid": "22757364", "title": "", "text": "standard. Gall, 552 U.S. at 51,128 S.Ct. 586. In reviewing the reasonableness of a sentence, “[w]e must ‘first ensure that the district court committed no significant procedural error....’” United States v. Morace, 594 F.3d 340, 345 (4th Cir.2010) (quoting Gall, 552 U.S. at 51,128 S.Ct. 586). Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. “If we find no significant procedural error, we must ‘then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.’” Mo-race, 594 F.3d at 345^16 (quoting Gall, 552 U.S. at 51,128 S.Ct. 586). A. Diosdado-Star relies heavily on our decision in Moreland to support his argument that the district court procedurally erred by imposing a variant sentence instead of first applying applicable departure provisions from the Guidelines. In More-land we stated that, in imposing a sentence after Booker, the district court must engage in a multistep process. First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. Next, the court must determine whether a sentence within that range ... serves the factors set forth in § 3553(a) and, if not, select a sentence [within statutory limits] that does serve those factors. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law.... If an appropriate basis for departure exists, the district court may depart. If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence (a “variance sentence”). 437 F.3d at 432 (emphasis added) (internal citations and quotations omitted). Based on the foregoing language that the district court should “first” look to a departure provision before varying, Diosdado-Star contends the district court procedurally erred by imposing the variant sentence without proceeding" }, { "docid": "22808446", "title": "", "text": "mandating our holding in Alston are not present here. Accordingly, we agree with the Third Circuit that a sentence imposed following an Alford plea qualifies as a “prior sentence” within the meaning of U.S.S.G. § 4A1.2. See Mackins, 218 F.3d at 269. IV. King additionally argues that the district court imposed a procedurally unreasonable sentence by granting the government’s motion for an upward variance and imposing sentence, without providing an adequate explanation at the sentencing hearing. We conclude that the district court did not err. We review any sentence, whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). However, we must first ensure that the district court has not committed any “significant procedural error,” which includes “failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” United States v. Carter, 564 F.3d 325, 328 (4th Cir.2009) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). The district court must select a sentence based on an “individualized assessment” of the facts presented. Gall, 552 U.S. at 50, 128 S.Ct. 586. Every sentence requires an adequate explanation. United States v. Hernandez, 603 F.3d 267, 271 (4th Cir.2010). When the district court imposes sentence within the Guidelines, “the explanation need not be elaborate or lengthy.” Id. However, when a district court applies a departure provision or variance from the Guidelines range based upon the 18 U.S.C. § 3553(a) factors, “the district court must give ‘serious consideration to the extent’ of the departure or variance, and ‘must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.’” United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir.2011) (quoting Gall, 552 U.S. at 46, 50, 128 S.Ct. 586). The district court must “state in open court” the particular reasons supporting its chosen sentence. 18 U.S.C. § 3553(c). King’s argument that he received a procedurally unreasonable sentence is refuted by the record before us. At the sentencing hearing," }, { "docid": "19532405", "title": "", "text": "the goals of sentencing, which include promoting respect for the law, punishment, deterrence, and protection of the public. 18 U.S.C. § 3553(a), (a)(2). It supplies seven factors the court must consider in carrying out this task. Id. § 3553(a)(1)-(7). These include accounting for the circumstances of the offense charged, the defendant's criminal history, the need for deterrence and public protection, the Guidelines range, and the desire to avoid unwarranted sentence disparities among similarly situated defendants. Id. We use a two-step process to review Judge Bucklo's sentencing determination. First, \"we determine whether the district court committed any 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.' \" United States v. Reyes-Hernandez , 624 F.3d 405, 409 (7th Cir. 2010) (quoting Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). Review for procedural errors is de novo . UnitedStates v. Rivera , 847 F.3d 847, 849 (7th Cir. 2017). If no procedural error is found, then the sentence is reviewed for substantive reasonableness. Reyes-Hernandez , 624 F.3d at 409. A sentence is substantively unreasonable only when the district court abused its discretion in imposing the sentence in question. Gall , 552 U.S. at 51, 128 S.Ct. 586. \"We presume that a sentence within a properly calculated Guidelines range is reasonable, but there is no corresponding presumption of unreasonableness for a non-Guidelines sentence.\" Reyes-Hernandez , 624 F.3d at 409 (quotation omitted). Above-Guidelines sentences will be upheld if the district court offered an adequate statement of reasoning therefor, consistent with the Section 3553(a) factors. United States v. Lewis , 842 F.3d 467, 477 (7th Cir. 2016). The appellate court must determine whether the justification offered comports with the degree of variance from the Guidelines. Id. at 477-78. This assessment accounts for the sentencing judge's \"superior position to find facts and judge their import under section" }, { "docid": "22678007", "title": "", "text": "respect for the conditions of supervision imposed by the court, and affords adequate deterrence to noncompliant behavior, and provides protection from the public from further crimes of the defendant. The district court also noted that the thirty-two month sentence was appropriate in light of Webb’s continued pattern of committing drug offenses. Webb did not object to the district court’s revocation sentence. He now appeals, contending that the thirty-two month sentence imposed upon revocation of his supervised release is plainly unreasonable. II. A. A district court has broad discretion when imposing a sentence upon revocation of supervised release. United States v. Thompson, 595 F.3d 544, 547 (4th Cir.2010). We will affirm a revocation sentence if it is within the statutory maximum and is not “plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 438 (4th Cir.2006). In making this determination, we first consider -whether the sentence imposed is procedurally or substantively unreasonable. Id. at 438-39. Only if we find the sentence unreasonable must we decide “whether it is ‘plainl/ so.” United States v. Moulden, 478 F.3d 652, 657 (4th Cir.2007) (quoting Crudup, 461 F.3d at 439). Because Webb did not raise any objection to the court’s explanation of his sentence, we review the record below for plain error. United States v. Hargrove, 625 F.3d 170, 183-84 (4th Cir.2010). To establish plain error, Webb must show (1) that the district court erred, (2) that the error is clear or obvious, and (3) that the error affected his substantial rights, meaning that it “affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even when this burden is met, we retain discretion whether to recognize the error and will deny relief unless the district court’s error “seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (internal quotation marks omitted). B. In exercising its discretion to impose a sentence of imprisonment upon revocation of" }, { "docid": "22971440", "title": "", "text": "no fine, and a $100 special assessment. II. “Whether a conviction constitutes a crime of violence under the Guidelines is reviewed de novo.” United States v. Jennen, 596 F.3d 594, 600 (9th Cir.2010). We review the sentence imposed by the district court for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We will reverse the sentence only where it was procedurally erroneous or substantively unreasonable. Carty, 520 F.3d at 993. “It would be procedural error for a district court to fail to calculate — or to calculate incorrectly — the Guidelines range ... or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range.” Id. (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). The explanation must be sufficient “to permit meaningful appellate review.” Id. at 992 (citing Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). While the district court “need not ... ar ticulate in a vacuum how each § 3558(a) factor influences its determination of an appropriate sentence,” when “a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.” Id. at 992-93. That said, lengthy explanations of sentencing decisions are not necessary “if ‘the record makes clear that the sentencing judge considered the evidence and arguments.’ ” United States v. Daniels, 541 F.3d 915, 922 (9th Cir.2008) (quoting Rita, 551 U.S. at 359, 127 S.Ct. 2456). In addressing whether Ruiz’s sentence was substantively unreasonable, we must consider “the totality of the circumstances.” Carty, 520 F.3d at 993. “A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing goals.” United States v. Croive, 563 F.3d 969, 977 n. 16 (9th Cir.2009) (quoting 18 U.S.C. § 3553(a)). “The touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and" }, { "docid": "22202306", "title": "", "text": "do not doubt a district court’s power to impose such sentences. I only call for what would be required if we were to apply Gall and consider procedural reasonableness: a “justification for an above-Guidelines sentence.” Montes-Flores, 736 F.3d at 371 (emphasis added). If the standard for harmlessness truly is “a high bar,” id., we should not be so forgiving as to find harmlessness without the explanation that would be otherwise required, see, e.g., United States v. King, 673 F.3d 274, 283 (4th Cir.2012) (appellate review must ensure that district courts “adequately explain ... any deviation from the Guidelines range”). Only with the assistance of such an explanation or justification may we then conduct a meaningful review. The absence of such justification for the alternative sentence cannot be more at odds with the perception of fair justice. The majority perceives the district court as specifically citing, in a “separate and particular explanation” for its alternative sentence, Maj. Op. at 383, the § 3553(a) factors. In reality, that “separate and particular explanation” was a single sentence, in which the district court simply referenced our harmless error precedent and its § 3553(a) analysis, which was devoid of any indication that an upward vari anee was necessary to impose an appropriate sentence. A court must provide more than just the § 3553(a) factors as a reason for varying upward, as those are required for every sentencing. Montes-Flores, 736 F.3d at 371. Absent a stated reason for varying upward where the court was otherwise satisfied to impose a sentence in the middle of the Guidelines range, I do not find that the district court’s § 3553(a) review would justify an upward variance. See Peña-Hermosillo, 522 F.3d at 1117 (alternative rationale inadequately explained where district court’s “cursory” reasoning made “vague” reference to § 3553(a) factors). While district courts need not employ any particular verbiage to justify an above-Guidelines sentence, the imposition of an alternative sentence demands “a thorough explanation” that “can help us identify when an erroneous Guidelines calculation had no effect on the final sentencing determination.” Zabielski, 711 F.3d at 389. Without this explanation, we" }, { "docid": "22147501", "title": "", "text": "U.S.C.A. § 3553(a) (West 2000 & Supp.2009). See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.2008). Sentencing courts are statutorily required to state their reasons for imposing sentence. See 18 U.S.C.A. § 3553(c) (West Supp.2009). Although a comprehensive, detailed opinion is not necessarily required, the court’s explanation must nonetheless be sufficient “to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (“After settling on the appropriate sentence, [the district court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”). District courts have “sizeable discretion” when sentencing, Abu Ali 528 F.3d at 266, and appellate review is limited to determining whether the sentence imposed is reasonable, see Gall, 552 U.S. at 40-41, 128 S.Ct. 586. An appellate court’s reasonableness review has procedural and substantive components. The procedural component requires us to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Id. at 51, 128 S.Ct. 586. The substantive component of reasonableness review requires us to “take into account the totality of the circumstances.” Id. While we may consider the extent of any variance from the advisory Guidelines range, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. Given the institutional advantages of district courts with regard to sentencing matters, see United States v. Evans, 526 F.3d 155, 166 (4th Cir.), cert. denied, — U.S.-, 129 S.Ct." } ]

[ { "docid": "9336538", "title": "", "text": "trial because the trial court’s ruling prevented him from adequately exposing the jury to facts from which it might infer that the witness was unreliable. It further held that the restriction violated Davis’ sixth amendment right of confrontation by preventing him from probing into any bias or prejudice which might have caused the witness to fabricate his identification testimony. The Davis Court, however, did not discuss the per se error rule or use language suggesting that this rule is the appropriate standard of review. Davis merely held that it is reversible error to restrict cross-examination when that restriction prevents the defendant from attempting to discredit the witness’ accuracy and truthfulness. Davis v. Alaska, 415 U.S. 308, 317-18, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974). Similarly, the Smith Court did not adopt a per se error rule. In Smith the trial court refused to permit the petitioner to ask the principal prosecution witness his name or address. The Court held that this restriction was unconstitutional because the very starting point in probing a witness’ credibility “must necessarily be to ask the witness who he is and where he lives” and that “to forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right to cross-examination itself.” 390 U.S. at 131, 88 S.Ct. at 749. This holding was based on the Court’s conclusion that the defendant was prejudiced; the Court did not apply a per se error rule. The Ninth Circuit in Chipman v. Mercer, 628 F.2d 528 (9th Cir. 1980), specifically stated that any infringment of a defendant’s right of confrontation is harmful error per se. Id. at 533. Despite this explicit statement, the language of the decision suggests that the court was actually applying the Chapman harmless error doctrine, for it stated that “the denial of cross-examination for bias or prejudice in this case violated the confrontation clause.” Id. (emphasis added). Moreover, the Chipman court relied on other Ninth Circuit decisions applying the harmless error beyond a reasonable doubt standard, which it did not overrule. This suggests that, while the decision speaks in terms of harmful" } ]

[ { "docid": "13983571", "title": "", "text": "Hasting, 461 U.S. 499, 507-12, 103 S.Ct. 1974, 1979-82, 76 L.Ed.2d 96 (1983); 3 LaFave & Israel, Criminal Procedure § 26.6, at pp. 278-81 (1984)) with regard to evidentiary rulings in jury cases. Most cases of harmless error involve the erroneous admission of evidence favorable to the prosecution. As a practical matter, if the evidence of guilt that was neither erroneously admitted nor tainted by the erroneously admitted evidence is overpowering, and the tainted evidence neither probative nor inflammatory (inflammatory evidence might overbear the judgment of a lay trier of fact), so that the appellate court can safely conclude that the likelihood that the defendant would have been acquitted is very small — too small to warrant the delays and other costs entailed by ordering a new trial — the error will be pronounced harmless (harmless beyond a reasonable doubt, if the appellate court is strongly convinced of its conclusion). Despite some contrary language in Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111, the doctrine of harmless error is available not only when the error consists of erroneously admitting evidence but also when it consists of excluding defense evidence in violation of the defendant’s constitutional right to confront the witnesses against him. See, e.g., United States ex rel. Nance v. Fairman, 707 F.2d 936, 941-43 (7th Cir.1983); United States ex rel. Scarpelli v. George, 687 F.2d 1012, 1016 (7th Cir.1982), and the very full discussion of this issue by Judge Rubin in Carrillo v. Perkins, 723 F.2d 1165, 1170-72 (5th Cir.1984). The test cannot be identical for the two types of error, however, and this for two reasons. First, the fact that improperly excluded evidence was inflammatory, in the sense of likely to distract and confuse the jury, would hardly be an argument against finding the error harmless; what would be, however, would be that the evidence was of the sort that might properly have carried great weight with the jury, even though the evidence put in by the prosecution was very strong. Second, there is an asymmetry between the prosecutor’s being allowed to put in" }, { "docid": "4079439", "title": "", "text": "comment on the reason that Mr. Smith had not testified in his own behalf, that invitation was followed by an overreaction by the prosecutor. He not only suggested to the jury that Mr. Smith’s silence was substantive evidence of his guilt but practically commanded the jury to reach such a conclusion. A prosecutor may never treat a defendant’s silence as substantive evidence of guilt. Id.; United States v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988). We therefore hold that the prosecutor’s comments in this case violated Mr. Smith’s fifth amendment right against self-incrimination. This error is nevertheless subject to review under the harmless error doctrine. The question this court must ask is whether, absent the prosecutor’s comments equating Mr. Smith’s failure to testify with substantive evidence of guilt, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. United States v. Hasting, 461 U.S. 499, 511, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983); United States v. Wilkins, 659 F.2d 769, 774 (7th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981). As we previously discussed in addressing the violation of Mr. Smith’s right to confrontation, the evidence against him was overwhelming, not least of all because of the admission in evidence of his confession and the corroborating testimony of Johnny Tuck. Therefore, though we believe that the prosecutor’s comments were constitutional error, we are convinced beyond a reasonable doubt that Mr. Smith would have been convicted even in their absence. Ill Conclusion The death qualification of Mr. Smith’s jury did not violate the sixth amendment. Mr. Smith’s sixth amendment claims regarding the prosecutor’s use of peremptory challenges are not properly before this court, and his Batson claim is foreclosed on collateral review. Although the trial court’s refusal to admit the impeaching testimony of the defendant’s mother violated his right to confrontation, that error was harmless beyond a reasonable doubt. Further, though the prosecutor’s comments on the defendant’s failure to testify violated his rights under the fifth" }, { "docid": "13983572", "title": "", "text": "only when the error consists of erroneously admitting evidence but also when it consists of excluding defense evidence in violation of the defendant’s constitutional right to confront the witnesses against him. See, e.g., United States ex rel. Nance v. Fairman, 707 F.2d 936, 941-43 (7th Cir.1983); United States ex rel. Scarpelli v. George, 687 F.2d 1012, 1016 (7th Cir.1982), and the very full discussion of this issue by Judge Rubin in Carrillo v. Perkins, 723 F.2d 1165, 1170-72 (5th Cir.1984). The test cannot be identical for the two types of error, however, and this for two reasons. First, the fact that improperly excluded evidence was inflammatory, in the sense of likely to distract and confuse the jury, would hardly be an argument against finding the error harmless; what would be, however, would be that the evidence was of the sort that might properly have carried great weight with the jury, even though the evidence put in by the prosecution was very strong. Second, there is an asymmetry between the prosecutor’s being allowed to put in more evidence of guilt than he should have and the defendant’s being prevented from putting on a defense. If the defendant were utterly precluded from defending himself, it would be clear that his conviction had to be reversed even if the evidence of guilt was overwhelming and could not have been offset by the evidence that the defendant would have introduced if allowed to do so. The Constitution assures the criminal defendant who wants it of some minimum amount of adversary procedure even if the outcome of the contest is a foregone conclusion. Otherwise the right to trial by jury could be denied on the ground that the outcome of the trial was foreordained and therefore the trial would be a waste of money. See Walberg v. Israel, 766 F.2d 1071, 1074 (7th Cir.1985). But we are far from that extreme point in this case. Cerro’s defense was impeded, probably improperly, but the impediment was a minor one; the error in keeping from the jury impeachment evidence of a marginal and cumulative nature must be" }, { "docid": "23171097", "title": "", "text": "even though the character evidence is weak or cumulative and the Government’s evidence is overwhelming; and we observe that in several cases, convictions have been affirmed despite erroneous exclusion of character evidence by the trial court. United States v. Saldivar, 710 F.2d 699 (11th Cir. 1983); United States v. Lechoco, 542 F.2d 84 (D.C. Cir. 1976); United States v. Lewis, 482 F.2d 632 (D.C. Cir. 1973). If automatic reversal is not required, what standard should be used by an appellate court in evaluating the effect of excluding the character evidence? One alternative would be to use the standard applied when an error is of constitutional proportions and to require that the error be harmless beyond a reasonable doubt. See generally United States v. Remai, 19 M.J. 229 (C.M.A. 1985); 1A Wigmore, Evidence § 56 n.l, p. 1165 (Tillers rev. 1983). Apparently this standard is being employed by several Federal Courts of Appeals, see, e.g., United States v. Saldivar, supra at 706-07; United States v. Lechoco, supra at 88; and its possible applicability is recognized by others, see Thomas v. Wyrick, 687 F.2d 235, 241 (8th Cir. 1982), cert. denied, 459 U.S. 1175, 103 S.Ct. 824, 74 L.Ed.2d 1020 (1983). Another alternative is to treat the exclusion of defense character evidence as a non-constitutional error. This standard may have been employed in United States v. Lewis, supra. For the most part there has been little judicial discussion or analysis as to the proper standard of appellate review when defense character evidence is improperly excluded; and this issue has not yet been briefed or argued in this Court. Fortunately, we need not decide the question at this time, because — even if we apply the strict standard applicable to constitutional error — we are convinced beyond a reasonable doubt that exclusion of the proffered character evidence was harmless to appellant. Even though the court members were not persuaded that appellant was guilty of the June 1 offenses, we cannot find in the record of trial a basis for inferring that they would have acquitted him of the June 7 offenses if the" }, { "docid": "5992989", "title": "", "text": "was responsible for the use of Benavides School District postage, the state appellate court held it sufficiently corroborative under state law to support Carrillo’s conviction. Thus, the jury could have considered Couling’s testimony even if Chapa had not testified at all. Even if Chapa’s testimony is disregarded in its entirety, the evidence of Carrillo’s guilt is overwhelming. We conclude that the restriction on cross-examination of Chapa, though impermissible under the confrontation clause, was harmless beyond reasonable doubt. Therefore, the district court’s denial of a writ of habeas corpus is AFFIRMED. . Carrillo, a member of the Texas House of Representatives, was campaigning for a seat in the state Senate. . Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). . Accord United States v. Hall, 653 F.2d 1002, 1007-08 (5th Cir.1981). . “Petitioner was thus denied the right of effective cross-examination which ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ ” 415 U.S. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 354 (quoting Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314, 315, and Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956, 958 (1968). . The no-harm rule entered federal jurisprudence as a concession in a respondent-state’s brief, quoted by the Supreme Court in Brookhart v. Janis, 384 U.S. 2, 86 S.Ct. 1245, 16 L.Ed.2d 316 (1966). The Court later recited the language as axiomatic in Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), as it did again in Davis. Brookhart presented the Court with a complete denial of cross-examination. In Smith, the prosecution’s principal witness simply refused to state his correct name and address, though he did answer other questions. . See Note, Constitutional Restraints on the Exclusion of Evidence in the Defendant’s Favor: the Implications of Davis v. Alaska, 73 Mich.L.Rev. 1465, 1469-72 (1975). . The First, Seventh, and District of Columbia Circuits also apply the harmless-error rule notwithstanding the Davis statement. United" }, { "docid": "16790854", "title": "", "text": "the excluded evidence, to make a discriminating appraisal of the possible biases and motivations of the witness.” Id. We conclude that the jury did, especially considering the small part Agent Miller’s testimony played in the trial. Permitting the cross examination would have required an extensive and irrelevant inquiry into political and budgetary conditions affecting the Bureau, and whether these conditions were sufficient motivation to “frame” Stackpole. This inquiry might well have confused the jury and distracted them from evaluating the evidence against Stackpole. See United States v. Jarabek, 726 F.2d 889, 902 (1st Cir.1984) (“[t]he very slight probative value of such evidence on the issue of bias does not overcome the strong likelihood of confusion on the central issues in the case and undue delay in the trial”). The district judge properly exercised her discretion to limit the cross examination. D. The On-Tape Refusal to Take a Lie Detector Test Part of the government’s evidence consisted of a tape recorded and transcribed interview between Stackpole and ATF agents, in which, on page 15 of a 21 page transcript, Stackpole refused to take a lie detector test. The government provided a copy of the tape and the transcript to Stackpole prior to trial. At trial, Stackpole made no objection to its introduction into evidence. He did not object until the tape was being played to the jury. The judge overruled the objection and permitted the jury to hear the entire tape. Later, at the conclusion of all the evidence, the judge offered a curative instruction. While the tape ruling was error, see United States v. Cardarella, 570 F.2d 264, 266-67 (8th Cir.), cert. denied, 435 U.S. 997, 98 S.Ct. 1651, 56 L.Ed.2d 87 (1978), and while the correct practice would have been to delete the offensive portion of the tape, in the circumstances the playing of the entire tape recording was harmless. Adapting the harmless error standard which we first enunciated in United States v. Capone, 683 F.2d 582, 586-87 (1st Cir. 1982), our decision here rests on the following four factors. First, the playing of the tape recording was the" }, { "docid": "4429648", "title": "", "text": "evidence law. However, the inquiry under the Sixth Amendment confrontation clause focuses upon whether a defendant received an adequate opportunity for effective cross-examination, Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934, 937 (1965), and whether a defendant’s inability to make a particular inquiry on cross-examination was prejudicial to him by depriving him of an ability to test the truth of a witness’ direct testimony. Blackwell v. Franzen, 688 F.2d 496, 500 (7th Cir.1982); Mattes v. Gagnon, 700 F.2d 1096 at 1101 (7th Cir.1983). We find these issues substantially different; considerations of federal-state comity require that the state courts first hear the substance of the constitutional claim. Petitioner now contends that since the Appellate Court determined that the evidentiary claim raised there was harmless error and that since the harmless error question must be similarly analyzed by this Court in deciding the confrontation claim, the essence of his argument here was before the state court and therefore was properly exhausted. We find this argument disingenuous. Exhaustion is determined by the threshold question of whether the claim raised here was in fact raised in the state court — not by whether the distinct claims, if established, both might ultimately be disposed of on the basis of a similar analysis of harmless error. For these reasons the state court did not have a fair opportunity to consider the substance of petitioner’s constitutional claim, and he has not met the exhaustion requirement. III. Although petitioner lacks standing before this Court because he failed to exhaust his state remedies, his claim also fails on the merits since we conclude that petitioner has not been denied his Sixth Amendment right to confront witnesses. While we do not necessarily agree with the district court judge’s conclusion that “the identical content of the statement made to Geisler was presented to the jury upon cross-examination of Julius when he admitted making the statement that his brother Dave was the gunman to an investigating police officer,” United States ex rel. Nance v. Fairman, No. 82-3107 at 5 (C.D.Ill. June 22, 1982), it is clear" }, { "docid": "6195640", "title": "", "text": "ruling which admits or excludes evidence unless a substantial right of the party is affected,” comprise the standards by which to determine whether the erroneous ruling of the trial court mandates reversal. It is important to recognize that Bennie Peak has not alleged any error of constitutional dimensions in this case. Therefore, the government need not show that the error was harmless beyond reasonable doubt, but only that the error had no “substantial influence” on the verdict. United States v. Kotteakos, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946) (emphasis added). This standard is considerably less onerous than the standard applicable to constitutional errors. United States v. Lane, 474 U.S. 438, 446 n. 9, 106 S.Ct. 725, 730 n. 9, 88 L.Ed.2d 814 (1986) (comparing standards applied to constitutional and non-constitutional error); United States v. Pirovolos, 844 F.2d 415, 425 (7th Cir.1988) (same); Miller v. Greer, 789 F.2d 438, 443-44 (7th Cir.1986) (same). This court has previously ruled that when “the likelihood that the defendant would have been acquitted is very small, too small to warrant the delays and costs entailed by ordering a new trial, the error will be pronounced harmless.” United States v. Cerro, 775 F.2d 908, 916 (7th Cir.1985). Accordingly, I believe that the exclusion of Bennie Peak’s then state of mind would not have affected the jury’s decision, and thus the erroneous exclusion of evidence appropriately comes under the harmless error rule. The majority states that the only evidence of Bennie Peak’s defense was that of his side of the conversation with Buford, and thus a substantial right of the defendant was violated when the trial judge excluded the evidence of Bennie’s then state of mind. On the contrary, the record establishes that the trial judge allowed evidence to go to the jury establishing the defendant’s capture theory of defense. Moreover, the trial judge properly instructed the jury that neither of the defendants could be convicted unless that defendant acted with the intent to possess and distribute the drugs. Thus, Buford’s testimony certainly allowed the jury to acquit both of the Peaks" }, { "docid": "23061501", "title": "", "text": "is little danger the jury will improperly use the co-defendant’s statements when they are properly modified to avoid implicating the other defendant. Here the prosecution’s actions significantly increase the danger of improper use. The prosecutor’s use of Akin’s statements against Powell is plain error, it is a clear and obvious violation of a constitutional right that substantially affects the fairness of judicial proceedings. See Garza, 429 F.3d at 169. C Nonetheless, a Bruton error does not necessarily mandate reversal. See Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). “It is well established that a Bruton error may be considered harmless when, disregarding the co-defendant’s confession, there is otherwise ample evidence against a defendant.” Vejar-Urias, 165 F.3d at 340 (internal citations and quotations omitted). To find that this violation of a federal constitutional right is harmless, we must be convinced beyond a reasonable doubt that the error was harmless in light of the other evidence presented at trial. Id. (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). On the other hand, we will find a Bruton error not harmless if, “absent the [improper evidence], there was a reasonable probability that the defendants would be acquitted. Id. (citing United States v. Hickman, 151 F.3d 446, 457 (5th Cir.1998)).” Powell claims that the Bruton error was not harmless beyond a reasonable doubt because all of the other evidence was of questionable veracity. He argues that each witness against him was biased because of cooperation with the government for lesser punishments, that three witnesses were drug dealers and are presumptively not credible. By contrast, he asserts that Akin’s statements, given that she is the mother of his child and his girlfriend, would have been given great weight by the jury. Additionally, Powell asserts the physical evidence weighed against conviction. For example, the car did not belong to him or Akin, and neither Powell’s nor Akin’s fingerprints were found on the individual bags containing crack cocaine found inside the dashboard. Lastly, Powell argues that the prosecutor’s role in this Bruton violation exacerbates the" }, { "docid": "13983570", "title": "", "text": "not as if the jury could have thought that Gaulke and Corti were anything but what they were: crooks singing for their freedom. Finally, the evidence of Cerro’s guilt would have been overwhelming even if Gaulke and Corti had been thoroughly discredited by a mountain of evidence of their prior crimes — especially once the three conspiracies are recharacterized as one, as we have held they must be. It is always perilous to speculate on what the effect of evidence improperly admitted was on a jury, or what the effect of evidence improperly excluded would have been. See Teitelbaum, Sutton-Barbere & Johnson, Evaluating the Prejudicial Effect of Evidence: Can Judges Identify the Impact of Improper Evidence on Juries?, 1983 Wis.L.Rev. 1147. The lay mind evaluates evidence differently from the legal mind, and while many appellate judges have substantial experience with juries and perhaps great insight into the thinking process of juries, others do not. This is a reason to be wary about invoking the doctrine of harmless error (on which see, e.g., United States v. Hasting, 461 U.S. 499, 507-12, 103 S.Ct. 1974, 1979-82, 76 L.Ed.2d 96 (1983); 3 LaFave & Israel, Criminal Procedure § 26.6, at pp. 278-81 (1984)) with regard to evidentiary rulings in jury cases. Most cases of harmless error involve the erroneous admission of evidence favorable to the prosecution. As a practical matter, if the evidence of guilt that was neither erroneously admitted nor tainted by the erroneously admitted evidence is overpowering, and the tainted evidence neither probative nor inflammatory (inflammatory evidence might overbear the judgment of a lay trier of fact), so that the appellate court can safely conclude that the likelihood that the defendant would have been acquitted is very small — too small to warrant the delays and other costs entailed by ordering a new trial — the error will be pronounced harmless (harmless beyond a reasonable doubt, if the appellate court is strongly convinced of its conclusion). Despite some contrary language in Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111, the doctrine of harmless error is available not" }, { "docid": "15082204", "title": "", "text": "held: “The issue of [the witness’] relationship with both state and federal law enforcement officials, in connection with his participation in this case, was highly relevant to his credibility as a witness for the prosecution.” While it is within the discretionary authority of the trial court to limit cross-examination, that authority “comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.” United States v. Mayer, 556 F.2d 245, 250 (5th Cir.1977); Carrillo v. Perkins, 723 F.2d 1165 (5th Cir.1984). The trial court . erred in prohibiting this line of questioning on cross-examination. Harmless Error Despite these errors, a reversal of appellants’ convictions is not warranted. After a studied examination of the record we are convinced that these errors did not prejudice the defense and, because of the overwhelming evidence of guilt, were harmless. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) (evidentiary rulings subject to harmless error rule); United States v. Daughtry, 502 F.2d 1019 (5th Cir.1974) (castigation of another jury’s verdict of not guilty); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970) (evidentiary rulings); Carrillo v. Perkins, 723 F.2d 1165 (5th Cir.1984) (limitation of cross-examination). To withstand attack the error must be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Carrillo v. Perkins, 723 F.2d 1165 (5th Cir.1984); United States v. Crumley, 565 F.2d 945 (5th Cir.1978). Before an error may be considered harmless beyond a reasonable doubt, the reviewing court must determine that “absent the so-determined unconstitutional effect, the evidence remains not only sufficient to support the verdict but [is] so overwhelming as to establish the guilt of the accused beyond a reasonable doubt.” Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir.1980) (en banc). And as we therein further observed: As the Court stated in Fahy, “it is necessary to review the facts of the case and the evidence adduced at trial” to determine the effect of the unlawfully admitted evidence “upon the other evidence adduced at trial and" }, { "docid": "15667860", "title": "", "text": "experience may know that persons accused of wrongdoing often deny their guilt before confessing. Further, any effort to test the basis for Agent Huffs opinion by examining the individual instances involving other confessions in the prior ten years obviously created a threat of a distracting exploration of the facts in unrelated cases. See Fed.R.Evid. 403. And all this assumes that the government has complied procedurally with its duties in respect of expert testimony. See Fed.R.Crim.P. 16(a)(1)(E). However, even assuming that Agent Huffs testimony was inadmissible and a timely objection to it was made on proper grounds, it was harmless error. The essential inquiry in harmless error review is whether the improperly admitted evidence likely affected the outcome of trial. See United States v. Rosales, 19 F.3d 763, 767 (1st Cir.1994). We think that Agent Huffs testimony did not likely affect the jury’s verdict in this case, for the following reasons. First, Agent Huff was extensively cross-examined by defense counsel, and his testimony was challenged by the defense during closing arguments as well. On the whole, the credibility of Agent Huff and the custodial statements attributed to appellants were fully explored by the parties and presented to the jury for its evaluation. Second, the weight of the evidence against appellants in this case is simply so great that the jury is exceedingly unlikely to have been swayed by the challenged testimony of Agent Huff. Testimony from appellants’ two accomplices, corroborating testimony from third parties and from Agent Huff, and even appellants’ own self-inculpatory statements all supported the jury’s finding of guilt beyond a reasonable doubt. We consider it highly unlikely that the omission of this particular testimony by Agent Huff would have led the jury to view all of that evidence differently and acquit appellants. Consequently, we hold that admission of Agent Huffs improper testimony was harmless error. 2. Prosecutor’s Remarks During Closing Argument Improper arguments to the jury during closing that do not implicate constitutional rights constitute reversible error only if the argument is both inappropriate and harmful. See United States v. Wihbey, 75 F.3d 761, 772 (1st Cir.1996). Improper" }, { "docid": "14182543", "title": "", "text": "U.S. 673, 673-76, 106 S.Ct. 1431, 1432-33, 89 L.Ed.2d 674 (1986) (holding that Sixth Amendment violation should have been reviewed under harmless error analysis). When, as here, reviewed on direct appeal, a constitutional violation is harmless error only if it is clear beyond a reasonable doubt that the error did not contribute to the verdict obtained. Chapman, 386 U.S. at 23, 87 S.Ct. at 828; see Lowery v. Collins, 996 F.2d 770, 772 (5th Cir.1993), supplementing Lowery v. Collins, 988 F.2d 1364 (5th Cir.1993). The government contended at oral argument that any error was harmless because Bailey testified outside the presence of the jury that he had received no promise of leniency from the government and had no specific hope for leniency. In other words, the government argues that — because there was no direct evidence of Bailey’s motive or bias — cross-examination into the basis of such motive or bias could not have affected the jury’s assessment of Bailey’s testimony. Neither contention establishes that the error was harmless. See Davis, 415 U.S. at 317, 94 S.Ct. at 1111 (describing the jurors “as the sole triers of fact and credibility” in the context of a district court’s limitation of cross-examination into possible bias). Although it would have been proper for the jury to decide that Bailey was not actually influenced by his status as one then being held on federal felony charges, they could have also concluded otherwise. Direct evidence of motive or bias is often unobtainable. This does not preclude the jury from inferring it under appropriate circumstances. See Carrillo v. Perkins, 723 F.2d 1165, 1169 (5th Cir.1984). The jury could well have questioned Bailey’s veracity because a person in Bailey’s situation would be under a natural tendency to want to curry favor or “please the prosecution.” Id. Consequently, we cannot say beyond a reasonable doubt that the jury would have believed Bailey if the district court had not abused its discretion by refusing to allow cross-examination into Bailey’s pending federal felony charges. Because Bailey provided the only evidence supporting the charge that Alexius’s statement in the first trial" }, { "docid": "5783247", "title": "", "text": "lied to them. And if he was willing to tell them a bald-faced lie on that point, it might also have wondered what the rest of his testimony was worth. Even though the standard of review for this kind of evidentiary ruling is abuse of discretion, we conclude in this case that it was error to exclude the evidence of Griffith’s narcotics conviction. B. Harmless Error This leads us to the government’s alternative argument, which predictably enough is that, even if the decision to exclude the conviction evidence was error, it was harmless. A harmless error, as Federal Rule of Criminal Procedure 52(a) tells us, is one that “does not affect substantial rights,” and it must be disregarded. See United States v. Norwood, 798 F.2d 1094, 1098 (7th Cir.1986). An error in the refusal to admit evidence is harmless if the evidence of guilt was overwhelming and the defendant was allowed to put on a defense, even if that defense was not as complete as the defendant might have preferred. See United States v. King, 75 F.3d 1217, 1222 (7th Cir.1996); United States v. Hanson, 994 F.2d 403, 407 (7th Cir.1993). The problem with the government’s harmless error argument in this case is that Griffith was the prosecution’s key witness. He was the only witness to connect all of the defendants to each other. He was the only witness to explain the meaning of all but 11 of the 118 tapes admitted at trial. He set up the time frame for the conspiracy, and he connected the various drug “spots” to members of the conspiracy. Evidence indicating that Griffith was lying on the stand might well have caused the jury to discount his testimony. We must therefore examine carefully the remaining evidence in order to determine whether the error was harmless. Upon doing so, we are convinced that the case against Montague was so strong that the error was indeed harmless, but that without Griffith the case against Campbell falls apart. Montague was convicted on two counts of the indictment: Count 16, which charged him with possession of three grams" }, { "docid": "15082203", "title": "", "text": "proof of the arrest records of six witnesses. At a pretrial hearing, defense counsel argued that the arrest records were admissible for impeachment purposes, to reflect on the witnesses’ motive for testifying against the defendant police officers. The evidence was barred. This was error. Typically, evidence of an arrest may not be used for impeachment of a witness; only evidence of convictions is permitted. Fed.R.Evid. 609. But the case before us is atypical. Here the defendants are police officers. Several of the witnesses had been arrested, sometimes by Garza’s deputies. Evidence of past arrests, and past involvement with the police in general and defendants in particular, would be pertinent in the jury’s essential determination of credibility. Such evidence would be relevant to the issue of bias, prejudice or ulteri- or motive of the witness. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Carrillo v. Perkins, 723 F.2d 1165 (5th Cir.1984); Greene v. Wainwright, 634 F.2d 272 (5th Cir.1981). In United States v. Croucher, 532 F.2d 1042, 1045 (5th Cir.1976) we held: “The issue of [the witness’] relationship with both state and federal law enforcement officials, in connection with his participation in this case, was highly relevant to his credibility as a witness for the prosecution.” While it is within the discretionary authority of the trial court to limit cross-examination, that authority “comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.” United States v. Mayer, 556 F.2d 245, 250 (5th Cir.1977); Carrillo v. Perkins, 723 F.2d 1165 (5th Cir.1984). The trial court . erred in prohibiting this line of questioning on cross-examination. Harmless Error Despite these errors, a reversal of appellants’ convictions is not warranted. After a studied examination of the record we are convinced that these errors did not prejudice the defense and, because of the overwhelming evidence of guilt, were harmless. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) (evidentiary rulings subject to harmless error rule); United States v. Daughtry, 502 F.2d 1019 (5th Cir.1974) (castigation of" }, { "docid": "18789892", "title": "", "text": "test is of “then-existing mental illness,” the prosecutor cannot rely on an irrebuttable presumption that “once unavailable, always unavailable.” In sum, the burden on the State to prove unavailability is a continuing one. In conclusion, our independent review of the state court finding of unavailability in this case leads us to agree with the district court assessment. The finding was made on a confused and “stale” record. The circuit court erred as a matter of law by finding L.L. unavailable as a witness. The resulting use of her previous testimony instead of her live appearance at trial deprived the petitioner of his sixth amendment right to confront a witness against him. Therefore, we affirm the district court holding that petitioner’s sixth amendment right to confrontation was violated. II Our conclusion that there was a violation of petitioner’s right of confrontation does not end our inquiry because constitutional errors of this sort can in certain circumstances constitute harmless error. Finding of a federal constitutional error does not require an automatic reversal of a conviction; there may be some such errors which, in the setting of a particular case, are so unimportant and insignificant that they may be deemed harmless, consistent with the Constitution. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966). The Supreme Court has imposed on the prosecution the burden of proving “beyond a reasonable doubt that the [constitutional] error complained of did not contribute to the verdict obtained.” Id. 386 U.S. at 24, 87 S.Ct. 828. In the context of trial, the issue is whether absent the constitutionally-forbidden evidence, honest and fair-minded jurors might very well have brought in not-guilty verdicts. Id. at 26, 87 S.Ct. at 829. The fact that there was some incrimination or circumstantial evidence does not render the error harmless. U.S. ex rel. Burke v. Greer, 756 F.2d 1295, 1302 (7th Cir.1985). Rather, the case against the defendant must be “overwhelming” in order to apply the harmless error rule. United States v. Shue, 766 F.2d 1122, 1133 (7th Cir.1985) (amended opinion). The Court does not vary the harmless error standard" }, { "docid": "6195641", "title": "", "text": "small, too small to warrant the delays and costs entailed by ordering a new trial, the error will be pronounced harmless.” United States v. Cerro, 775 F.2d 908, 916 (7th Cir.1985). Accordingly, I believe that the exclusion of Bennie Peak’s then state of mind would not have affected the jury’s decision, and thus the erroneous exclusion of evidence appropriately comes under the harmless error rule. The majority states that the only evidence of Bennie Peak’s defense was that of his side of the conversation with Buford, and thus a substantial right of the defendant was violated when the trial judge excluded the evidence of Bennie’s then state of mind. On the contrary, the record establishes that the trial judge allowed evidence to go to the jury establishing the defendant’s capture theory of defense. Moreover, the trial judge properly instructed the jury that neither of the defendants could be convicted unless that defendant acted with the intent to possess and distribute the drugs. Thus, Buford’s testimony certainly allowed the jury to acquit both of the Peaks based on the capture theory, had the jury believed that testimony. By finding Buford guilty, the jurors made clear that they did not believe that Buford intended such a capture. Having drawn this conclusion, the jurors could acquit Bennie only if they believed that Buford may have proposed the capture plan to Bennie, but was lying when he did so. Only then could Bennie lack the criminal intent that the jury implicitly found Buford possessed. This scenario seems quite farfetched, possibly from the script of a movie. I agree that this theory is within the realm of possibility, but I fail to see how a mere possibility is sufficient to allow the court to find that the error may have had a substantial effect on the jury’s verdict. Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248. Of course, no human being including a judge can know with certainty the exact impact of a particular error on the deliberations of a particular jury. However, Rule 52(a) requires that we do our best, after reviewing the" }, { "docid": "23171096", "title": "", "text": "weight to such an evaluation of the record by this experienced appellate judge. Appellate defense counsel also emphasize that Vandelinder was acquitted of the offenses which allegedly had occurred on June 1; and they urge that, since both drug purchases were made by the informant Bruce Green, the court members might also have acquitted appellant of the June 7 offenses if they had been allowed to consider evidence of appellant’s “good military character.” Character evidence may itself generate reasonable doubt in the factfinder’s mind. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467 (1896). Thus, in reversing a conviction because of the exclusion of character evidence, one Court of Appeals cited Michelson and its proposition that “evidence of good character may in itself raise a reasonable doubt as to defendant’s guilt.” United States v. Angelini, 678 F.2d 380, 382 (1st Cir. 1982). However, we do not believe that every error in excluding defense character evidence mandates reversal even though the character evidence is weak or cumulative and the Government’s evidence is overwhelming; and we observe that in several cases, convictions have been affirmed despite erroneous exclusion of character evidence by the trial court. United States v. Saldivar, 710 F.2d 699 (11th Cir. 1983); United States v. Lechoco, 542 F.2d 84 (D.C. Cir. 1976); United States v. Lewis, 482 F.2d 632 (D.C. Cir. 1973). If automatic reversal is not required, what standard should be used by an appellate court in evaluating the effect of excluding the character evidence? One alternative would be to use the standard applied when an error is of constitutional proportions and to require that the error be harmless beyond a reasonable doubt. See generally United States v. Remai, 19 M.J. 229 (C.M.A. 1985); 1A Wigmore, Evidence § 56 n.l, p. 1165 (Tillers rev. 1983). Apparently this standard is being employed by several Federal Courts of Appeals, see, e.g., United States v. Saldivar, supra at 706-07; United States v. Lechoco, supra at 88; and its possible applicability is recognized by" }, { "docid": "4079432", "title": "", "text": "statements about the identity of the intruder were analogous to “otherwise appropriate cross-examination” designed to place in question the credibility of an unavailable hearsay declarant. If Mr. Smith had available to him comparable means by which to undermine the reliability of Boyle’s hearsay declarations, perhaps we would hesitate to find a violation of the right to confrontation. See United States v. Dempewolf 817 F.2d 1318, 1321 (8th Cir.), cert. denied, — U.S.-, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987) (no error in limiting cross-examination on issue of prior inconsistent statement where jury was aware of, among other things, witness’ other prior inconsistent statements); Nance v. Fairman, 707 F.2d 936, 942 & n. 7 (7th Cir.1983) (same). Here, however, Mr. Smith had no alternative means of attacking Boyle’s credibility with regard to his identification of Mr. Smith as the perpetrator, primarily because Boyle was unavailable for cross-examination on issues such as his ability to observe or possible bias against the defendant. The trial court’s exclusion of the prior inconsistent statement therefore deprived Mr. Smith of his only chance to place before the jury a legitimate question as to the truth of Boyle’s hearsay declarations, Nance, 707 F.2d at 942, and violated his right to confront the witnesses against him. Given the admission of all of Boyle’s hearsay kitchen statements, the trial court should have permitted this impeaching testimony. Although we believe that the exclusion of Mrs. Smith’s, testimony did amount to constitutional error, that error is nevertheless subject to review under the harmless error doctrine. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. Thus, we must determine what effect the error may have had on the fact-finding process at trial. Id. In evaluating whether an error is harmless, we do not engage in a simple review of all of the evidence, but instead we attempt to “assess, as precisely as we can, the impact of the objectionable material on the jury’s verdict.” Fencl v. Abrahamson, 841 F.2d 760, 769 (7th Cir.1988). In this case, we believe that the evidence of Mr. Smith’s guilt was overwhelming, not least of all" }, { "docid": "22576467", "title": "", "text": "Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059-1060, 31 L.Ed.2d 340 (1972), to hold that violations of the confrontation clause may, in an appropriate case, be declared harmless. We are convinced, however, that this is not such an appropriate case. In order to conclude that Klein was not prejudiced by the federal constitution violation that occurred here, we must, as noted, be able to declare a belief that this violation was harmless beyond a reasonable doubt. Chapman v. California, supra, 386 U.S. at 25, 87 S.Ct. at 828-829. The heavy burden imposed by Chapman derives from the principle that, since a holding that an error of constitutional dimension was nonprejudicial is a factual determination, a reviewing court should not lightly find a constitutional error to have been nonprejudicial, particularly where, as here, the defendant’s constitutional right of trial by jury would be implicated by such appellate fact-finding. See Goldberg, Harmless Error: Constitutional Sneak Thief, 71 J.Crim.L. & Criminology 421, 427-32 (1980). Our decision whether we have the requisite reasonable doubt depends on our assessment of the significance of both the erroneously admitted evidence (i.e., Rabinowitz’s prior testimony) and the erroneously withheld evidence (i.e., Rabinowitz’s recantation) relative to the totality of the proof offered against Klein. See Hendrix v. Smith, 639 F.2d 113, 115 (2d Cir. 1981). In assessing the significance of the error that occurred here, we must be attentive to the danger that the jury might have allowed the erroneously admitted evidence to “spill over” and infect its consideration of facially unrelated aspects of the case, see Washington v. Harris, supra, 650 F.2d at 453; United States v. Ferrara, 451 F.2d 91, 97 (2d Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1291, 31 L.Ed.2d 489 (1972), and to the difficulty that a reviewing court inevitably faces in endeavoring to estimate the potential - impact of wrongfully excluded evidence, see Note, Harmful Use of Harmless Error in Criminal Cases, 64 Cornell L.Rev. 538, 542-43 (1979). We have substantial doubt that, if the trial judge had directed Rabinowitz, upon being recalled to the stand, to answer the questions" } ]

[ { "docid": "22674472", "title": "", "text": "or premises in the City to perform any duty imposed upon them by the Municipal Code.” Appellant nevertheless refused the inspectors access to his apartment without a search warrant. Thereafter, a complaint was filed charging him with refusing to permit a lawful inspection in violation of § 507 of the Code. Appellant was arrested on December 2 and released on bail. When his demurrer to the criminal complaint was denied, appellant filed this petition for a writ of prohibition. Appellant has argued throughout this litigation that § 503 is contrary to the Fourth and Fourteenth Amendments in that it authorizes municipal officials to enter a private dwelling without a search warrant and without probable cause to believe that a violation of the Housing Code exists therein. Consequently, appellant contends, he may not be prosecuted under § 507 for refusing to permit an inspection unconstitutionally authorized by § 503. Relying on Frank v. Maryland, Eaton v. Price, and decisions in other States, the District Court of Appeal held that § 503 does not violate Fourth Amendment rights because it “is part of a regulatory scheme which is essentially civil rather than criminal in nature, inasmuch as that section creates a right of inspection which is limited in scope and may not be exercised under unreasonable conditions.” Having concluded that Frank v. Maryland, to the extent that it sanctioned such warrantless inspections, must be overruled, we reverse. I. The Fourth Amendment provides that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. The Fourth Amendment thus gives concrete expression to a right of the people which “is basic to a free society.” Wolf v. Colorado, 338 U. S." } ]

[ { "docid": "5409126", "title": "", "text": "the petitioner’s unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, and they took great care to overhear only the conversations of the petitioner himself.” Nevertheless, the Court reversed, holding that under such conditions a magistrate could and should have issued a search warrant authorizing a search and seizure. Had the agents gone before a magistrate, the limited duration and scope of the proposed search and the strong showing of probable cause would in all probability have resulted in their obtaining a warrant and carrying out a reasonable search. Thus, the Supreme Court has clearly held that electronic searches and seizures are reasonable if they are made to adhere strictly to the demands of the warrant clause of the Fourth Amendment. This brings us to Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L. Ed.2d 1040 (1967), by far the most important and relevant decision in this area. There a majority of five justices struck down as unconstitutional a New York eavesdropping statute (Section 813-a of the New York Code of Criminal Procedure) because it was “ * * * too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area.” First, the majority decided that the language of the New York statute was probably not equivalent to the “probable cause” requirement of the Fourth Amendment, a debatable decision but of no significance in the ease at bar because § 2518 substitutes the words “probable cause” for “reasonable ground” used in the New York statute. Secondly, it contained no requirement for particularity in the warrant regarding the specific crime committed, “the place to be searched”, or “the persons or things to be seized.” The Court felt that given the inherent nature of electronic surveillance, these safeguards were particularly necessary, and contrasted the deficient requirements of the New York statute with the procedures undertaken in Osborn. Third, the statute did not limit the surveillance to one limited intrusion, nor did it require prompt execution of the warrant. Fourth, the statute authorized eavesdropping for up" }, { "docid": "22667371", "title": "", "text": "show his guilt. These letters were placed in the control of the District Attorney and were subsequently produced by him and offered in evidence against the accused at the trial. The defendant contends that such appropriation of his private correspondence was in violation of rights secured to him by the Fourth and Fifth Amendments to the Constitution of the United States. We shall deal with the Fourth Amendment, which provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly' describing the place to be searched, and the persons or things to be seized.” The history of this Amendment is given with particularity in the opinion of Mr. Justice Bradley, speaking for the court in Boyd v. United States, 116 U. S. 616. As was there shown, it took its origin in the determination of the framers of the Amendments to the Federal Constitution to provide for that instrument a Bill of Rights, securing to the American people, among other things, those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the Government by which there had been invasions of the home and privacy of the citizens and the seizure of their private papers in support of charges, real or imaginary, made against them. Such practices had also received sanction under warrants and seizures under the so-called writs of assistance, issued in the American colonies. See 2 Watson on the Constitution, 1414 et seq. Resistance to these practices had established the principle which was enacted into the fundamental law in the Fourth Amendment, that a man’s house was his castle and not to be invaded by any general authority to search and seize his goods and papers. Judge Cooley, in his Constitutional Limitations, pp. 425, 426, in treating of this feature of our Constitution, said: “The maxim that ‘every man’s house" }, { "docid": "22886655", "title": "", "text": "(Douglas, J., dissenting). And when such a policy’s constitutionality is determined merely by whether it seems reasonable under the “totality of the circumstances,” we all have reason to fear that the nightmarish worlds depicted in films such as Minority Report and Gattaca will become realities. This is especially the case given the potentially endless duration of our current “war on terror,” in the course of which we have already seen that war-time government seeks rapidly to expand its law enforcement powers and to increase its authority to take action against its citizens free from the ordinary rigors of judicial supervision. See, e.g., The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA-PATRIOT) Act, Pub.L. No. 107-56, 115 Stat. 272, §§ 206 (roving wiretaps), 215 (library records searches), 213 (“sneak and peak” searches) (2001). In such times, the pressures to expand CODIS further than ever before are certain to increase. II. The Reasonableness of the Search The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. “The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. The Fourth Amendment thus gives concrete expression to a right of the people which is basic to a free society.” Camara v. Mun. Court of City and County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (internal quotation marks omitted). To serve these purposes, the Constitution generally requires that searches be supported by probable cause and be approved prior to execution by a warrant issued by an impartial magistrate. A. The Constitution Requires Individualized Suspicion for Law Enforcement Searches The Fourth Amendment’s requirement that searches be supported by reasonable and particularized" }, { "docid": "1209891", "title": "", "text": "18, United States Code, which establishes the procedure for the interception of wire and oral communications. As already indicated the Fourth Amendment to the Constitution of the United States provides the constitutional framework within which to test the validity of the statute. This amendment dictates that people have a right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that this right “shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized”. The amendment does not bar all searches and seizures but only those that are unreasonable. The amendment outlawed the “general warrant”, and its basic purpose “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.\" Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930. Thus the issue confronting this Court is whether 18 U.S.C. § 2518 is so broad as to result in the authorization for a general warrant permitting an unreasonable search and seizure in violation of the 4th Amendment. The United States Supreme Court faced a similar problem in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). There it held the New York permissive eavesdrop statute, N.Y.Code Crim.Proc. § 813-a, to be unconstitutionally broad in its sweep “resulting in a trespassory intrusion into a constitutionally protected area” and thus violative of the 4th and 14th Amendments. The Court condemned the New York statute’s “blanket grant of permission to eavesdrop * * * without adequate judicial supervision or protective procedures,” 388 U.S. at 60, 87 S.Ct. at 1884 and reiterated the 4th Amendment requirement that a neutral and detached authority be interposed between the police and the public. It held that this authority must independently find probable cause, and that “warrants may only issue 'but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized’.”" }, { "docid": "1209890", "title": "", "text": "information obtained by the use of a wire tap on telephone number 483-2948 subscribed to by “Geneva Thornton”, located at #603, 1425 N Street, Northwest, Washington, D. C., and alleged to have been commonly used by Bernis Lee Thurmon. The intercept was authorized pursuant to Section 2518, Title 18, United States Code, by U. S. District Judge John Lewis Smith on January 24, 1970. The defendants in each case have filed or joined in similar pre-trial motions and the Government has filed a motion to consolidate the two cases for trial. All motions in both cases were heard in a joint proceeding acquiesced in by all parties and submitted to the Court for its determination. 1. CONSTITUTIONALITY OF THE STATUTE All defendants have attacked the constitutionality of the statute authorizing the interception. Their primary argument is that the statute contravenes the 4th Amendment restrictions against unreasonable searches and seizures. The motions before the Court challenge the validity of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, particularly Section 2518, Title 18, United States Code, which establishes the procedure for the interception of wire and oral communications. As already indicated the Fourth Amendment to the Constitution of the United States provides the constitutional framework within which to test the validity of the statute. This amendment dictates that people have a right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that this right “shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized”. The amendment does not bar all searches and seizures but only those that are unreasonable. The amendment outlawed the “general warrant”, and its basic purpose “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.\" Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930. Thus the issue confronting this Court is whether 18 U.S.C. § 2518 is so broad as to" }, { "docid": "15474017", "title": "", "text": "one entry is involved each intrusion must be treated formally and approved in advance so that the judge or magistrate can supervise when and how the entry is to be accomplished. * * * The authorization given in this instance did not limit the number of entries nor did it specify either the general time or manner of entry. Thus the authority given was far too sweeping. United States v. Ford, supra, 414 F.Supp. at 884. The court held that because the authorization was invalid the District of Columbia Code mandated suppression of the evidence obtained by the electronic surveillance. II The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The present case implicates two distinct aspects of the Fourth Amendment: unconsented physical entry into private prem ises and recording of oral statements. We deal primarily with the first aspect. The Government’s initial contention is that surreptitious entry into private premises, for the limited purpose of installing, maintaining, or removing bugging equipment, is not independently within the Fourth Amendment’s protections, and that an entry provision is “not required by either the Supreme Court or Congress to be part of the order.” Government br. at 8. Therefore, it is argued, the surreptitious entry provision, whether or not overbroad, constituted surplusage and should have been irrelevant to any judicial scrutiny of the intercept order. In cases involving physical intrusions into private premises the Supreme. Court has repeatedly recognized that the individual has an interest in “limiting the circumstances under which the sanctity of his home may be broken by official authority.” The basic purpose of the Fourth Amendment, the Court has stated, “is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Indeed, until Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)," }, { "docid": "22539030", "title": "", "text": "of broad policy discussions and philosophical discourses on such nebulous subjects as privacy, for me the language of the Amendment is the crucial place to look in construing a written document such as our Constitution. The Fourth Amendment says that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The first clause protects “persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers’ purpose to limit its protection to tangible things by providing that no warrants shall issue but those “particularly describing the place to be searched, and the persons or things to be seized.” A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized but to something already in existence so it can be described. Yet the Court’s interpretation would have the Amendment apply to overhearing future conversations which by their very nature are nonexistent until they take place. How can one “describe” a future conversation, and, if one cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that information showing what is expected to be said is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general information really meet the specific language of the Amendment which says “particularly describing” ? Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not" }, { "docid": "22662307", "title": "", "text": "IV The Court was entirely faithful to the traditions that have been embedded in our law since the adoption of the Bill of Rights when it wrote: “The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home— a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their . . . houses . . . shall not be violated.’ That language unequivocally establishes the proposition that ‘[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ Silverman v. United States, 365 U. S. 505, 511 [1961]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U. S. 573, 589-590 (1980). The warrant requirement safeguards this bedrock principle of the Fourth Amendment, while the immunity bestowed on a police officer who acts with probable cause permits him to do his job free of constant fear of monetary liability. The Court rests its doctrinally flawed opinion upon a double standard of reasonableness which unjustifiably and unnecessarily upsets the delicate balance between respect for individual privacy and protection of the public servants who enforce our laws. I respectfully dissent. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This theme also pervades our pre-Harlow opinions construing the scope of official immunity in suits brought under 42 U. S. C. § 1983. Those precedents provide" }, { "docid": "5111932", "title": "", "text": "his First and Fourth Amendment rights. A. General Fourth Amendment Standard The Fourth Amendment secures the right of an individual “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides that this right “shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. Although the Fourth Amendment protects against certain governmental intrusions, it has never been held to provide a generalized right to privacy. See Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Instead, constitutional protections attach only when the governmental “search” or “seizure” implicates a constitutionally protected interest. United States v. Dionisio, 410 U.S. 1, 15, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). Sparks bears the burden of establishing this protected interest by demonstrating that he maintained a legitimate expectation of privacy in the place searched. United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983). The modern test for analyzing the expectation question, as articulated in Justice Harlan’s concurrence in Katz, is a two-part inquiry: first, whether the defendant has exhibited an actual, subjective, expectation of privacy; and second, whether such subjective expectation is one which society is willing to recognize as objectively reasonable. 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring). If the government intrudes upon a reasonable expectation of privacy without a warrant, the invasion is presumptively unconstitutional. Likewise, if no reasonable expectation of privacy is infringed, the government action does not implicate the Fourth Amendment. The two-prong Katz analysis, therefore, presents a threshold determination that must be satisfied before inquiry into the constitutionality of a search or seizure is required. See id. B. Reasonable Expectation of Privacy In analyzing the expectation of privacy in this case there are two main issues before the Court: (1) whether the installation of the GPS device on the Chrysler infringes upon any reasonable expectation of privacy, and (2) whether monitoring the location of the GPS" }, { "docid": "5409122", "title": "", "text": "create areas of privacy which must be free from governmental intrusion. In Camara v. Municipal Court, which held that a person could refuse a code-enforcement inspection of his personal residence without a warrant, the Court stated that the basic purpose of the Fourth Amendment: “ * * * is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” It is against this policy recognizing “the sanctity of a man’s home and the privacies of life” and minimizing instances of unwanted governmental intrusions, that the commands of the Fourth Amendment must be interpreted. The Fourth Amendment states that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Under the terms of the amendment, then, every search must be reasonable and conducted under the authority of a proper warrant. Even if wiretapping is reasonable, however, it still may be irreconcilable with the requirements of the warrant clause of the Fourth Amendment. The Supreme Court has taken occasion to comment on these questions in considering related issues of wiretaps and electronic surveillance in three recent cases. In Osborn v. United States, petitioner, a lawyer, was indicted for attempting to bribe a member of a jury panel. He had hired an investigator to delve into the backgrounds of the prospective jurors. Upon being advised by the investigator that he had a relative on the panel, the petitioner manifested a desire to make contact with that member of the panel. Having reported to federal agents the aims of the lawyer, an affidavit was drawn up and presented to two District Court judges, who authorized the use of an electronic device to record further conversations between petitioner and the investigator. Such a recording was made and held admissible by the Supreme Court. The Osborn case is not precedent for expansive or continuous electronic surveillance due to" }, { "docid": "5409127", "title": "", "text": "statute (Section 813-a of the New York Code of Criminal Procedure) because it was “ * * * too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area.” First, the majority decided that the language of the New York statute was probably not equivalent to the “probable cause” requirement of the Fourth Amendment, a debatable decision but of no significance in the ease at bar because § 2518 substitutes the words “probable cause” for “reasonable ground” used in the New York statute. Secondly, it contained no requirement for particularity in the warrant regarding the specific crime committed, “the place to be searched”, or “the persons or things to be seized.” The Court felt that given the inherent nature of electronic surveillance, these safeguards were particularly necessary, and contrasted the deficient requirements of the New York statute with the procedures undertaken in Osborn. Third, the statute did not limit the surveillance to one limited intrusion, nor did it require prompt execution of the warrant. Fourth, the statute authorized eavesdropping for up to a two-month period, which the Court characterized as the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause Fifth, because an extension of undefined duration was authorized by the statute on a bare showing that such prolongation be “in the public interest.” Sixth, the statute placed no mandatory termination on the wiretap once conversations sought were seized. Seventh, the statute had no requirement for notice, “nor does it overcome this defect by requiring some showing of special facts.” Thus, the Court found the statute unconstitutional for the reasons that it was not of limited duration and particular scope, did not require a strong showing of probable cause, and permitted unreasonable searches and seizures prohibited by the Fourth Amendment. This decision, however, in no way precludes the Court from holding that a more narrowly drawn statute is constitutional. Berger is of importance for several reasons: first, because of the analogy between the New York statute and the provisions of the wiretap statute here in question; secondly, because" }, { "docid": "22886656", "title": "", "text": "their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. “The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. The Fourth Amendment thus gives concrete expression to a right of the people which is basic to a free society.” Camara v. Mun. Court of City and County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (internal quotation marks omitted). To serve these purposes, the Constitution generally requires that searches be supported by probable cause and be approved prior to execution by a warrant issued by an impartial magistrate. A. The Constitution Requires Individualized Suspicion for Law Enforcement Searches The Fourth Amendment’s requirement that searches be supported by reasonable and particularized suspicion and a warrant is deeply rooted in our history. The historical background of that amendment demonstrates that our Framers’ were steadfastly committed to the ideal that general warrants and searches conducted in the absence of reasonable and particular suspicion were intolerable in a democratic society. See Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). As the Henry Court noted, The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of “probable cause” before a magistrate was required. The Virginia Declaration of Rights, adopted June 12, 1776, rebelled against that practice: “That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not" }, { "docid": "22539029", "title": "", "text": "a New York statute authorizing wiretapping on warrants issued by magistrates on showings of probable cause. The Berger case also set up what appeared to be insuperable obstacles to the valid passage of such wiretapping laws by States. The Court’s opinion in this case, however, removes the doubts about state power in this field and abates to a large extent the confusion and near-paralyzing effect of the Berger holding. Notwithstanding these good efforts of the Court, I am still unable to agree with its interpretation of the Fourth Amendment. My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today’s decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order “to bring it into harmony with the times” and thus reach a result that many people believe to be desirable. While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses on such nebulous subjects as privacy, for me the language of the Amendment is the crucial place to look in construing a written document such as our Constitution. The Fourth Amendment says that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The first clause protects “persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers’ purpose to limit its protection to tangible things by providing that no warrants shall issue but those “particularly describing the place to be searched, and the persons or things to be" }, { "docid": "15515765", "title": "", "text": "before’ the Court that defendants have seriously considered either alternative. III. Conclusions of Law Plaintiffs raise a number of constitutional and statutory issues in addition to their main challenge under the Fourth Amendment. The Court finds it unnecessary to address those issues at this juncture because Fourth Amendment considerations entitle plaintiffs to injunctive relief. A. General Fourth Amendment Principles The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. It restricts the activities of civilian authorities as well as law enforcement officers, New Jersey v. T.L.O., 469 U.S. 325, 335-37, 105 S.Ct. 733, 740-41, 83 L.Ed.2d 720 (1985), and applies to the conduct of governmental employers. O’Connor v. Ortega, — U.S.-, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714 (1987) (plurality opinion). Fourth Amendment does not restrict all searches and seizures by the government, but it does prohibit all unreasonable searches and seizures. Fourth Amendment analysis proceeds in two steps. First, the Court must determine whether the government’s conduct constitutes a search or seizure by infringing upon a reasonable expectation of privacy. Compulsory urinalysis of public employees is a “search and seizure” in this Circuit. Jones v. McKenzie, 833 F.2d 335, 338 (D.C.Cir.1987); National Federation of Federal Employees v. Weinberger, 818 F.2d 935, 942 (D.C.Cir.1987) (NFFE). Second, if a search or seizure occurred, the Court must determine whether it was reasonable. The interest served by the Fourth Amendment is the protection of the “privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). To safeguard this interest, “one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a" }, { "docid": "22706562", "title": "", "text": "of the content of wiretaps without exception. In sum, it is fair to say that wiretapping on the whole is outlawed, except for permissive use by law enforcement officials in some States; while electronic eavesdropping is — save for seven States — permitted both officially and privately. And, in six of the seven States electronic eavesdropping (“bugging”) is permissible on court order. III. The law, though jealous of individual privacy, has not kept pace with these advances in scientific knowledge. This is not to say that individual privacy has been relegated to a second-class position for it has been held since Lord Camden’s day that intrusions into it are “subversive of all the comforts of society.” Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (1765). And the Founders so decided a quarter of a century later when they declared in the Fourth Amendment that the people had a right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ..” Indeed, that right, they wrote, “shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Almost a century thereafter this Court took specific and lengthy notice of Entick v. Carrington, supra, finding that its holding was undoubtedly familiar to and “in the minds of those who framed the Fourth Amendment . . . .” Boyd v. United States, 116 U. S. 616, 626-627 (1886). And after quoting from Lord Camden’s opinion at some length, Mr. Justice Bradley characterized it thus: “The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case . . . they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life.” At 630. Boyd held unconstitutional an Act of the Congress authorizing a court of the United States to require a defendant in a" }, { "docid": "1209892", "title": "", "text": "result in the authorization for a general warrant permitting an unreasonable search and seizure in violation of the 4th Amendment. The United States Supreme Court faced a similar problem in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). There it held the New York permissive eavesdrop statute, N.Y.Code Crim.Proc. § 813-a, to be unconstitutionally broad in its sweep “resulting in a trespassory intrusion into a constitutionally protected area” and thus violative of the 4th and 14th Amendments. The Court condemned the New York statute’s “blanket grant of permission to eavesdrop * * * without adequate judicial supervision or protective procedures,” 388 U.S. at 60, 87 S.Ct. at 1884 and reiterated the 4th Amendment requirement that a neutral and detached authority be interposed between the police and the public. It held that this authority must independently find probable cause, and that “warrants may only issue 'but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized’.” 388 U.S. at 55, 87 S.Ct. at 1881. In striking down the constitutionality of the New York Statute the Supreme Court delineated four basic 4th Amendment requirements of particularity that must be a part of any statute authorizing wiretapping or eavesdropping. These requirements are as follows: 1. The statute must provide that probable cause be established in the application and order for the belief that a particular offense has been or is being committed; a particular description of the property (conversations or communications) to be seized, and not merely the name or identity of the person whose conversations are to be seized. 2. The statute must require particularity as to the duration of the intrusion which shall not be so long as to be “the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause”. The statute must provide for prompt execution of the order and for a new showing of probable cause upon each application for an extension of the original authorization. 3. The statute must require" }, { "docid": "5409121", "title": "", "text": "the two wiretap and pen registers authorized against defendant, Perillo. Before considering the specific questions challenging the validity of the statute, certain general observations should be made. While no decision of the Supreme Court has held wiretapping unconstitutional per se, this backstairs manner of obtaining evidence is inherently offensive to the Anglo-Saxon mind and can only be condoned because of the constant and ever-increasing struggle between the criminal and law enforcement elements of our society. Wiretapping and “bugging” constitute a potential en croachment upon certain zones of personal privacy about which the Supreme Court has commented on several occasions. Thus, in Stanley v. Georgia, the Court held that it was unconstitutional to make the mere private possession of obscene materials a crime because an individual has a: “ * * * right to be free, except in very limited circumstances from unwanted governmental intrusions into one’s privacy.” In Griswold v. Connecticut, the Court, in holding that the Connecticut statute prohibiting the use of contraceptives was unconstitutional, held that some of the Amendments to the Constitution create areas of privacy which must be free from governmental intrusion. In Camara v. Municipal Court, which held that a person could refuse a code-enforcement inspection of his personal residence without a warrant, the Court stated that the basic purpose of the Fourth Amendment: “ * * * is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” It is against this policy recognizing “the sanctity of a man’s home and the privacies of life” and minimizing instances of unwanted governmental intrusions, that the commands of the Fourth Amendment must be interpreted. The Fourth Amendment states that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Under the terms of the amendment, then, every search must be reasonable and conducted under the authority of a" }, { "docid": "462658", "title": "", "text": "as violative of the fourth amendment of the United States Constitution. While the City of Chattanooga appeals the district court’s holding that mandatory drug testing, without reasonable individualized suspicion, constitutes a violation of the fourth amendment, the fire fighters do not challenge the district court’s holding that the 1986 testing program did not violate due process requirements. We seek then only to ascertain whether the City’s drug testing program violates the fourth amendment. There can be little question, and the City of Chattanooga does not seriously dispute, that the compulsory urinalysis of public sector employees constitutes a “search and seizure” within the meaning of the fourth amendment. In its entirety, the fourth amendment to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. By virtue of the fourteenth amendment, the fourth amendment prohibits unreasonable searches and seizures by the states. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). As was made clear in Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), “the fourth amendment protects people, not places.” This protection is necessary to safeguard individual privacy and dignity, values basic to a free society. See Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). The fourth amendment provides this protection by explicitly prohibiting two types of government intrusions into individual autonomy: searches and seizures. A “search” has occurred, for purposes of the fourth amendment, when the government infringes upon “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). We join other circuits in holding that mandatory urinalyses of public sector employees" }, { "docid": "666879", "title": "", "text": "was the subject of Camara, supra. The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects certain privacy rights which individuals have in their persons, their personal effects, and their homes. E. g., Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). “It marks the right of privacy as one of the unique values of our civilization and, with few exceptions, stays the hands of the police unless they have a search warrant issued by a magistrate on probable cause”. McDonald v. United States, 335 U.S. 451, 453, 69 S.Ct. 191, 192, 93 L.Ed. 153 (1948). The Fourth Amendment does not, however, immobilize completely all government action which seeks intrusion into protected privacy areas. The amendment explicitly recognizes that not all searches and seizures are, per se, unreasonable—that there may be some instances in which the needs of society are so great as to justify government intrusion into protected privacy areas. Camara v. Municipal Court, supra, 387 U.S. at 539, 87 S.Ct. 1727. The Amendment has been interpreted as containing a balancing test whereby the public interest in permitting a municipality to make health and safety inspections of commercial establishments may be successfully asserted against the privacy interests of individuals. Id. at 538-539, 87 S.Ct. 1727. In sanctioning “reasonable” inroads upon the right of privacy guaranteed commercial establishments and their patrons, however, the Supreme Court in Camara did not jettison those procedural protections which the Amendment erects against arbitrary and indiscriminate intrusion into protected privacy areas. Id. at 531-534, 87 S.Ct. 1727. Municipalities, in order to make “reasonable” uneonsented administrative searches, must comply with the “probable cause”, warrant, and neutral magistrate requirements of the Fourth Amendment. The probable cause requirement is just one safeguard to insure that the government interest in" }, { "docid": "23028583", "title": "", "text": "security against the infringement upon the individual employee’s right to privacy and determined that reasonable suspicion, rather than probable cause, was the appropriate standard for conducting strip searches and urinalyses of employees. The district court order allows vehicle searches within the confines of the institution to be conducted uniformly or by systematic random selection. Searches of employees’ vehicles within the institution’s confines, other than uniformly or by systematic random selection were permitted only on the basis of a reasonable suspicion. II. Searches The fourth amendment to the United States Constitution provides that: [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The basic purpose of the fourth amendment, which is enforceable against the states through the fourteenth amendment, New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 739-40, 83 L.Ed.2d 720 (1985), is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials,” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 91967). The fourth amendment imposes a “standard of ‘reasonableness’ upon the exercise of discretion by government officials.” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). See also Illinois v. Lafayette, 462 U.S. 640, 644, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65 (1983); Delaware v. Prouse, supra, 440 U.S. at 654, 99 S.Ct. at 1396. A. Strip Body Searches Defendants argue that to maintain security and intercept contraband it is necessary that they be allowed to request strip searches" } ]

[ { "docid": "19886809", "title": "", "text": "justifications. See United States v. Williams, 431 F.3d 767, 773-76 (11th Cir.2005) (Carnes, J., concurring). Here, as we shall see, the district court would be justified for other reasons in imposing the same sentence in this case. On remand, the district court would be required to apply the current version of the Guidelines. See Demaree, 459 F.3d at 795. The original sentencing took place in April 2006 but the court used the November 2003 version of the Guidelines. The sections of the Guidelines at issue in this case were subject to important amendments in November 2004 that made the penalties much more severe. As discussed above, the benefit received in this case was at least $82,362. This figure, which may have seemed much less significant under the 2003 Guidelines, creates a much stiffer sentencing range under the amended Guidelines. The calculation under the new Guidelines would be as follows: Anderson’s base offense level would be twelve. See U.S.S.G. § 201.1(a)© (2007). Two levels would be added for multiple bribes under § 2Cl.l(b)(l). Four levels would be added because Rieser was a “public official.” See U.S.S.G. § 201.1(b)(3) (2007). Finally, using our adjusted net benefit of $82,362, eight levels would be added for a net benefit of more than $70,000. Anderson’s total offense level would be twenty-six, which would yield a range of sixty-three to seventy-eight months. This is the same range the district court originally used, so the district court would be free to impose the same sentence on remand. Because it has clearly stated its intention to do so, any error in the calculation of the sentencing range was harmless. C. The Reasonableness of the Sentence Under Section 3553(a) Because the district judge would apply the same sentence, we now ask only whether it is a reasonable one. When the sentence falls within the Guidelines range, it is presumed reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). Ultimately, however, the reasonableness of a sentence is determined in light of the § 3553(a) factors. See Gall, 128 S.Ct. at 596-97. Of course, the judge does not" } ]

[ { "docid": "8625665", "title": "", "text": "of 18 U.S.C. § 3553(a), and then sentenced Mr. Davenport to a within-guidelines sentence that is entitled to a presumption of reasonableness. Again we agree with counsel’s assessment. The district court calculated a guidelines imprisonment range of 188 to 235 months based on a total offense level of 31 and a criminal history category of VI, both of which are correct. The offense level reflects that Mr. Davenport, because he previously had been convicted of at least three violent felonies or serious drug offenses, is an armed career criminal, see 18 ' U.S.C. . § 924(e)(1); U.S.S.G. § 4B1.4(b)(3)(B), and it also reflects that he accepted responsibility, which earned him a two-level reduction, see id. § 3El.l(a). The criminal history category of VI is based on a correct calculation of 14 criminal history points. Two of those points were assessed because Mr. Davenport was on probation at the time of his arrest, U.S.S.G. § 4Al.l(d), and the others resulted from qualifying convictions for which he was sentenced within the time limits prescribed in § 4Al.l(e). Mr. Davenport did object to the counting of one of his prior drug convictions under § 924(e) on the ground that he had received a “restoration of rights” letter from the state regarding it. See Buchmeier v. United States, 581 F.3d 561, 565 (7th Cir.2009) (en banc); United States v. Vitrano, 405 F.3d 506, 510 (7th Cir.2005). The court concluded that Mr. Davenport’s rights had not been fully restored because the letter did not restore his right to vote, see United States v. Adams, 698 F.3d 965, 967-68 (7th Cir.2012); United States v. Burnett, 641 F.3d 894, 897 (7th Cir.2011), but more importantly, the court recognized that Mr. Davenport had three qualifying convictions even without counting the questionable one. (While these particular convictions were too old to garner criminal history points, the Armed Career Criminal Act places no limit on the age of convictions. See United States v. Foster, 652 F.3d 776, 792-93 (7th Cir.2011); United States v. Wright, 48 F.3d 254, 255-56 (7th Cir.1995).) The district court also adequately applied the sentencing factors of" }, { "docid": "19352964", "title": "", "text": "PREGERSON, Circuit Judge: Arturo Carlos Figueroa-Ocampo (Figueroa-Ocampo) appeals his sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. Applying the recent United States Supreme Court decision in Lopez v. Gonzales, — U.S. —, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), we vacate Figueroa-Ocampo’s sentence and remand for re-sentencing. I. On April 16, 2003, Figueroa-Ocampo was indicted for violating 8 U.S.C. § 1326(a) (previously deported alien found in the United States without the Attorney General’s permission). On October 22, 2004, a federal jury found Figueroa-Ocam-po guilty as charged in the one-count indictment. Figueroa-Ocampo’s presen-tence report (PSR) set his base offense level at eight points and added eight points for his prior California felony conviction for possession of a controlled substance, which the PSR characterized as an “aggravated felony” under U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(C) (2003). Figueroa-Ocampo received a three-point reduction for acceptance of responsibility, lowering his total offense level to thirteen. With a criminal history category of V, his guidelines sentence range was thirty to thirty-seven months imprisonment followed by three years of supervised release. Figueroa-Ocampo objected to the eight-point sentence enhancement for his simple possession (possession for personal use) offense in violation of California Health and Safety Code § 11350(a). He argued that his simple possession offense should not be considered an “aggravated felony” because, although a felony under California law, the offense is a misdemeanor under the Controlled Substances Act. The district court overruled Figueroa-Ocam-po’s objection and sentenced him to thirty-seven months of imprisonment. II. We review de novo whether the district court erred when it determined that the defendant’s prior conviction qualifies as an “aggravated felony” for purposes of U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(C). See United States v. Soberanes, 318 F.3d 959, 961 (9th Cir.2003). We also review de novo the “district court’s interpretation of the [Sentencing [Guidelines.” Id. III. A defendant convicted under section 1326(a) is generally subject to a maximum term of imprisonment of two years. See 8 U.S.C. § 1326(a). However, a defendant whose prior removal" }, { "docid": "22924231", "title": "", "text": "WILLIAMS, Circuit Judge. René Jaimes-Jaimes pleaded guilty to one count of being present in the United States unlawfully after having been deported, 8 U.S.C. § 1326(a). The parties in their written plea agreement, and the probation officer in her presentence report, all concurred that the sentencing court should increase the offense level by 16 levels because Jaimes (as he calls himself) previously had been convicted of a “crime of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court accepted that position and determined that Jaimes’s total offense level was 21 and that his sentencing range was 70 to 87 months. The court sentenced him to 78 months’ imprisonment. On appeal, however, Jaimes argues that the district court committed plain error by imposing the 16-level increase; Jaimes now contends that his prior offense is an “aggravated felony” but not a “crime of violence” under § 2L1.2, and so he should have been given only an eight-level increase. See U.S.S.G. § 2L1.2(b)(1)(C). The sentence imposed by the district court was indeed plainly erroneous, and we now vacate and remand for resentencing. I. BACKGROUND Jaimes was deported to Mexico in 2001, but in January 2003 he turned up in jail in Milwaukee, Wisconsin, after being arrested for a drug offense. Jaimes has several prior convictions, including a Wisconsin state conviction for “discharging a firearm into a vehicle. or building,” Wis. Stat. § 941.20(2)(a), an offense he concedes qualifies as an aggravated felony, see 8 U.S.C. § 1101(a)(43)(F). The offense guideline applicable to Jaimes’s immigration violation was amended in November 2001 to provide that a prior conviction for an “aggravated felony” warrants an eight-level increase in offense level, but that a conviction for one of several types of more serious felonies warrants either a 12-level or a 16-level increase. See U.S.S.G. § 2L1.2(b)(1); United States v. Vargas-Garnica, 332 F.3d 471, 474 (7th Cir.2003). The previous guideline had provided that a conviction for any aggravated felony triggered a 16-level increase, whereas the Guidelines now provide that a defendant with a conviction for an aggravated felony receives an increase of between 8 and 16 levels depending on" }, { "docid": "3300344", "title": "", "text": "Perez in Mexico, and they had four children. In 1995, authorities in New Mexico arrested defendant with a shipment of marijuana he had transported from California. Defendant was convicted under the name on his fraudulent green card and sentenced to ten months in federal prison. In 1996, he was deported to Mexico. In May of 2003, defendant paid a smuggler to return him to the United States and ultimately made his way to Wisconsin where his sister apparently lived. In October 2003, Wisconsin authorities arrested him for possession of cocaine with intent to distribute, and defendant was subsequently convicted and sentenced to three years in state prison. While in state custody, he came to the attention of immigration authorities and admitted that he had reentered the country without permission after having been removed. The government charged defendant with a violation of 8 U.S.C. § 1326, and he entered a plea of guilty. The probation office prepared a pre-sentence report, which calculated his offense level (“OL”) as 17 (base OL 8, U.S.S.G. § 2L1.2(a), plus 12 based on his prior felony drug conviction, § 2L1.2(b)(l)(B), and minus 3 for acceptance of responsibility, § 3E1.1), and his criminal history category as III, producing an imprisonment range of 30-37 months. Neither party objected to the guideline calculations, but defendant asked for a below-guideline sentence based on fast-track disparity, while the government requested a guideline sentence. II. DISCUSSION A. Sentencing Principles In imposing sentence, the court must consider the factors set forth in 18 U.S.C. § 3553(a), which include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the" }, { "docid": "4873476", "title": "", "text": "later, Smith sold $60 worth of crack (0.3 grams) to a confidential police source in a hand-to-hand transaction. He pleaded guilty to distribution and possession with intent to distribute crack. Given the amount of crack attributed to him (10.2 grams), Smith’s base offense level would have been 18, see U.S.S.G. § 2Dl.l(e)(ll), and his prior convictions would have placed him in criminal history category III. But Smith’s two prior convictions for aggravated fleeing from police (a felony), see 625 ILCS § 5/11-204.1, qualified as crimes of violence, see U.S.S.G. § 4B1.2(a); Welch v. United States, 604 F.3d 408, 425 (7th Cir.2010); United States v. Spells, 537 F.3d 743, 754 (7th Cir.2008), and because in this case he pleaded guilty to controlled substance offenses, see U.S.S.G. § 4B1.2(b), the probation officer classified him as a career offender. This classification resulted (after a three-level reduction for acceptance of responsibility, see id. § 3El.l(a), (b)) in a total offense level of 29 and a category VI criminal history. See id. at § 4Bl.l(a), (b). Smith’s guidelines range as a career offender was 151 to 188 months (as opposed to the range of 24 to 30 months that would have applied without the career-offender label). Smith did not object to the probation officer’s guidelines calculations, but he argued for a below-guidelines sentence of 60 months’ imprisonment. He criticized the career-offender guidelines because they were not produced through the Sentencing Commission’s traditional empirical method, and he also argued that his guidelines range “greatly overstates the seriousness of ... [his] instant drug offense and predicate fleeing offenses” because his current offense involved only small quantities of drugs and his predicate offenses did not involve the use of a weapon or the type of deliberate violence of the crimes enumerated in U.S.S.G. § 4B1.2(a). He also contended that his “personal history and characteristics support a below guidelines sentence.” He pointed specifically to his youth, troubled childhood, and history of mental illness (including his diagnoses of depression, bipolar disorder, and “oppositional defiant disorder”). The district court adopted the findings and guidelines calculations from the pre-sentence report and ultimately" }, { "docid": "22902036", "title": "", "text": "liberties with a child (Virginia). On November 1, 2006, the Virginia Department of Corrections contacted federal immigration agents and informed them that Diaz-Ibarra was in Virginia’s custody but would soon be released. On December 7, 2006, a federal grand jury sitting in the Eastern District of Virginia indicted Diaz-Ibarra, charging him with being found in the United States after having been deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C.A. §§ 1326(a) and (b)(2) (West 2005). Diaz-Ibarra pleaded guilty to the indictment with-out the benefit of a written plea agreement. Thereafter, a probation officer prepared a presentence report (“PSR”) for Diaz-Ibarra. The PSR recommended an advisory Guidelines range of 70 to 87 months’ imprisonment. As part of the Guide-lines range calculation, the probation officer applied a sixteen-level enhancement to Diaz-Ibarra’s base offense level based on his conclusion that Diaz-Ibarra’s 1992 Georgia convictions for felony attempted child molestation constituted “crimes of violence” under Guideline § 2L1.2(b)(l)(A)(ii). Both before and at his sentencing hearing, Diaz-Ibarra objected to the PSR’s characterization of his 1992 Georgia convictions as “crimes of violence.” Although he conceded that the convictions supported an eight-level enhancement under § 2L1.2(b)(l)(C) because they qualified as “aggravated felonies,” Diaz-Ibarra con tended that the sixteen-level enhancement was improper because his offenses “involved no physical contact of any kind” and were not “violent in nature.” (J.A. at 18.) The district court overruled Diaz-Ibarra’s objection, concluding that application of the § 2L1.2(b)(l)(A)(ii) enhancement was warranted because Diaz-Ibarra’s 1992 convictions for felony attempted child molestation qualified as “crimes of violence.” Accordingly, the district court sentenced Diaz-Ibarra to 78 months’ imprisonment, within the recommended advisory Guidelines range. Diaz-Ibarra timely appealed. We have jurisdiction pursuant to 28 U.S.C.A. § 1291 (West 2000) and 18 U.S.C.A. § 3742(a) (West 2000 & Supp.2006). II. A. If the end point of a sentencing proceeding is the district court’s selection of a “reasonable” sentence, the starting point, as the Supreme Court recently reiterated, is the correct calculation of the applicable Guidelines range. Gall v. United States, — U.S. -, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007)" }, { "docid": "22920917", "title": "", "text": "BRISCOE, Circuit Judge. Saul Chavez-Diaz pleaded guilty to illegal reentry after deportation subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to thirty months of imprisonment. Chavez-Diaz appeals his sentence, contending that the district court miscalculated his guideline range and that his sentence is unreasonable because mitigating circumstances warranted a lower sentence. We conclude that while we do not have jurisdiction to review the district court’s discretionary decision to deny a downward departure, we have jurisdiction post-Booker to review the sentence imposed for reasonableness. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Chavez-Diaz’s sentence. I. On March 17, 2005, United States Border Patrol agents arrested Saul Chavez-Diaz and seven other individuals who were suspected of illegally crossing the United States-Mexico border near Columbus, New Mexico. A criminal records check revealed that Chavez-Diaz had been previously deported following a 1995 conviction in Wyoming state court. Chavez-Diaz pleaded guilty, without the benefit of a plea agreement, to one count of illegal reentry after deportation for an aggravated felony. The presentence report (PSR) recommended a total offense level of 21 and a criminal history category score of II, resulting in an advisory guideline range of 41 to 51 months. Specifically, the PSR calculated a base offense level of 8, U.S.S.G. § 2L1.2(a), added 16 levels because Chavez-Diaz’s prior 1995 conviction constituted a drug trafficking offense for which the sentence imposed exceeded thirteen months, U.S.S.G. § 2L1.2(b)(l)(A)(i), and subtracted 3 levels for Chavez-Diaz’s acceptance of responsibility, U.S.S.G. § 3E1.1. Further, Chavez-Diaz received three criminal history points based on his 1995 conviction. The PSR found nothing upon which to base a departure. At sentencing, the district court stated that it had reviewed the PSR, and that based on an offense level of 21 and a criminal history category I, Chavez-Diaz’s sentencing range was 41 to 51 months. Vol. Ill at 22. The district court, however, expressed concern over Chavez-Diaz’s decision to decline a Rule 11(c)(1)(C) plea agreement, which would have resulted in an offense level of 19. Id. at 2, 19. The district" }, { "docid": "23447638", "title": "", "text": "TASHIMA, Circuit Judge: Justo Hernandez-Valdovinos (“Hernandez”) appeals the judgment of the district court sentencing him to 30 months’ imprisonment following his guilty plea to reentry after deportation, in violation of 8 U.S.C. § 1326(a). Hernandez contends that the district court erred in classifying his prior felony offense as an aggravated felony and in applying a 12-level sentencing enhancement when he only received probation for the prior felony. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm. BACKGROUND In June 2002, Hernandez was found in Arizona, arrested, and charged with reentry after deportation, in violation of 8 U.S.C. § 1326. He pled guilty, but objected to the pre-sentence report (“PSR”), which recommended a 12-level sentencing enhancement pursuant to United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(l)(B) because of a prior drug-trafficking conviction with a sentence of less than 13 months. Hernandez’s prior conviction was in Arizona state court for attempted sale of narcotic drugs. The state court ordered that the sentence be suspended and placed Hernandez on four years’ probation; however, the court also ordered Hernandez to serve two months in jail as a condition of probation. Hernandez contended that his prior felony was not an aggravated felony for sentencing purposes because the statute of conviction included conduct that does not qualify as an aggravated felony. He further contended that the government had failed to establish by clear and convincing evidence that his prior conviction was for an aggravated felony. The district court rejected Hernandez’s arguments and adopted the facts as set forth in the PSR and the Addendum to the PSR. Based on an offense level of 17 and a criminal history category of III, the guideline range was 30-37 months. The court sentenced Hernandez to 30 months’ imprisonment. STANDARD OF REVIEW The district court’s decision that a prior conviction is a qualifying offense for a sentencing enhancement pursuant to U.S.S.G. § 2L1.2 is reviewed de novo. See United States v. Soberanes, 318 F.3d 959, 961 (9th Cir.2003) (reviewing de novo the question of whether a defendant’s prior conviction qualifies as an" }, { "docid": "20807985", "title": "", "text": "convicted establish that a deported alien who illegally reenters and remains in the United States can violate the statute at three different points in time: when he “enters,” “attempts to enter,” or when he “is at any time found in” this country. 8 U.S.C. § 1326(a). As was said in United States v. Rodriguez, 26 F.3d 4 (1st Cir.1994), “we think it plain that ‘enters,’ ‘attempts to enter’ and ‘is at any time found in’ describe three distinct occasions on which a deported alien can violate Section 1326.” Id. at 8. Cuevas was indicted specifically for the offense of being “found” in the United States in violation of § 1326(a). That was the charge to which he pleaded guilty. Thus, even though defendant illegally reentered the United States in 1990, he committed his § 1326(a) offense in 1995, when he was “found.” Rodriguez, 26 F.3d at 8. He was unquestionably serving a criminal probationary sentence for his 1994 state drug conviction at that time. There was no error in the district court’s application of U.S.S.G. § 4Al.l(d). Affirmed. . Section 2L1.2 of the Guidelines, which governs defendant’s offense of conviction, sets a base offense level of 8. The district court then added sixteen levels under subsection (b)(2) and sub-traded three levels for acceptance of responsibility under § 3E1.1, producing a total offense level of 21. Charted against a criminal history category of IV, that offense level yielded a sentencing range of 57-71 months; the district court imposed sentence at the bottom of the range. . While Cuevas asserts that § 2L1.2(b)(2) does not apply to him, he concedes that his BOL of 8 was subject at least to a 4-level increase under § 2L1.2(b)(l). Subtracting two levels for acceptance of responsibility under § 3El. 1(a), he would calculate his total offense level to be 10, corresponding to a sentencing range of 15-21 months, given a criminal history category of IV. . Under that guideline, defendants convicted under 8 U.S.C. § 1326 who previously have been \"deported after a conviction for an aggravated felony” arc subject to a substantial increase in" }, { "docid": "6858005", "title": "", "text": "I. EBEL, Circuit Judge. BACKGROUND On July 18, 2002, Adalberto Venegas-Ornelas (“Defendant”) was arrested in New Mexico. Defendant was a Mexican national who had previously been deported after having been convicted in Colorado of first degree trespass, a felony. Defendant pled guilty to one count of violating 8 U.S.C. § 1326. The presentence report (PSR) calculated Defendant’s offense level as 10. The PSR recommended a base offense level of 8 pursuant to U.S.S.G. § 2L1.2(a), with an increase of four levels for a prior felony conviction pursuant to § 2L1.2(b)(1)(D) and a reduction of two levels for acceptance of responsibility pursuant to § 3E1.1. Defendant’s criminal history category was IV. The United States objected to the PSR, arguing that Defendant’s prior felony conviction was an aggravated felony justifying an eight level increase in his base offense level, instead of the four level increase recommended by the PSR. The district court agreed with the United States and determined that Defendant’s base offense level was 13 and his criminal history category was IV, giving him a guideline sentencing range of 24-30 months. The court sentenced him to 24 months in the custody of the Bureau of Prisons. Defendant appeals his sentence on the ground that his prior Colorado conviction for criminal trespass was not an aggravated felony qualifying him for an increase under U.S.S.G. § 2L1.2(b)(1)(C). For the following reasons, we AFFIRM the district court’s sentence. II. DISCUSSION A. Standard of Review We review de novo the determination that a prior offense is an “aggravated felony” under the Sentencing Guidelines. United States v. Saenz-Mendoza, 287 F.3d 1011, 1013 n. 1 (10th Cir.2002); United States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir.2000). B. Sentencing Guideline and Statutory Overview The Sentencing Guideline at issue in this case, U.S.S.G. § 2L1.2(b)(1) (2002), provides for enhancements based on the nature of an illegal alien’s convictions prior to removal. If an alien was previously convicted of an “aggravated felony,” he or she is subject to an eight-level enhancement. § 2L1.2(b)(1)(C). The commentary to this guideline directs the courts to use the definition of “aggravated felony” given" }, { "docid": "4999113", "title": "", "text": "fingerprint analysis revealed that the driver was BarahonaMontenegro. As a result of this incident, BarahonaMontenegro was charged in the United States District Court for the Western District of Michigan with unlawful reentry after having been removed following conviction for an aggravated felony in violation of 8 U.S.C. § 1326(b)(2), and with being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A). On October 11, 2007, Barahona-Montenegro pleaded guilty to being an illegal alien in possession of a firearm, and the government dismissed the illegal reentry charge. The PSR indicated a Guidelines range of 37 to 46 months of imprisonment based on a total offense level of 17 and a criminal history category of IV. Barahona-Montenegro filed a written objection to the calculation of his criminal history, category. The PSR reported that Barahona-Montenegro had been sentenced to 60 days in jail for a 2003 California burglary conviction and assigned two criminal history points to this offense. Barahona-Montenegro argued that this sentence had been suspended and that the conviction should be accorded only one criminal history point. Further, Barahona-Montenegro asserted that if this conviction were properly counted, his criminal history category would be III, and his Guidelines range would be 30 to 37 months of incarceration. The district court held a sentencing hearing on January 18, 2008, at which Barahona-Montenegro raised his objection to the PSR’s calculation of his criminal history category. In ruling on this objection, the district court made the following remarks: If this drops to a criminal history level III, I don’t think a criminal history level III adequately represents the criminal history score of this gentleman, who incidentally the entire time has been an illegal alien. Driving under the influence in Los Angeles, possession of cocaine base for sale with a jail sentence, and a series of probation revocations and reinstatements, willful cruelty to a child with 90 days in jail and a 48-month probation, I don’t think a category III quite represents that, together with the fact that we have at this time an outstanding pending possession of narcotic controlled substances" }, { "docid": "12418016", "title": "", "text": "to reject the recommended range along with Valdovinos’s guilty plea. See id. But in this case the judge elected to accept the agreement and accordingly sentenced Valdovinos to 10 to 12 months in prison. In January 2010, after serving his sentence, Valdovinos was removed to Mexico. In May 2013, Valdovinos reentered the United States without permission and returned to North Carolina. He was arrested a few weeks later for resisting a public officer, and charged with illegal reentry by a removed alien in violation of 8 U.S.C. § 1326(a). He pled guilty to the charge. In preparation for Valdovinos’s sentencing, a probation officer prepared a presen-tence report calculating Valdovinos’s recommended term of imprisonment for this reentry conviction. The probation officer recommended a base offense level of 8 and a 12-point enhancement on the ground that Valdovinos had previously been convicted of a “felony drug trafficking offense,” i.e., his 2009 North Carolina conviction for selling heroin. See U.S.S.G. § 2L1.2(b)(l)(B). After a 3-point reduction for acceptance of responsibility, Valdo-vinos’s total recommended offense level was 17. Combined with a criminal history category of II, this offense level produced a Guidelines range of 27 to 33 months’ imprisonment. Valdovinos objected to the felony drug-offense enhancement. He noted that under the Guidelines, a “felony” is “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2 cmt. n. 2. Valdo-vinos argued that because his guilty plea to the prior North Carolina conviction was entered as part of an agreement that capped his sentence at 12 months once the court accepted his plea, that conviction was not punishable by more than one year in prison. Consequently, he maintained, his prior conviction for selling heroin did not constitute a felony under the Guidelines and so could not serve as a predicate offense to enhance his federal sentence for illegal reentry. The district court rejected the argument. It recognized that the plea agreement reduced Valdovinos’s prior North Carolina sentence. The court found, however, that this did not alter the fact that the offense was punishable by imprisonment exceeding one year" }, { "docid": "22157262", "title": "", "text": "PER CURIAM: Pablo Estrada-Mendoza (Estrada) pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). Estrada’s presentence investigation report (PSR) set his base offense level at 8 and added 8 levels for his prior Texas felony conviction for possession of a controlled substance, which the PSR characterized as an “aggravated felony” under U.S.S.G. § 2L1.2(B)(1)(C). After a 3-level reduction for acceptance of responsibility, Estrada’s total offense level was 13. With a criminal history category of VI, his sentencing guidelines imprisonment range was 33 to 41 months. Estrada objected to the 8-level increase for the controlled substance offense on the ground that it should not be considered an aggravated felony because, although it was a felony under Texas law, it would be a misdemeanor under the federal Controlled Substances Act (CSA). The district court overruled the objection and sentenced Estrada to serve 33 months in prison. Applying the recent decision of the Supreme Court in Lopez v. Gonzales, — U.S. —, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), we vacate in part and remand for resentenc-ing. The district court’s ruling on Estrada’s objection was consistent with our holding in United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997). In that case, we held that the § 2L1.2 increase for an aggravated felony is proper for a prior state felony drug conviction even though the same conduct would be a misdemeanor under the CSA. Hinojosa-Lopez, 130 F.3d at 693-94. This court has repeatedly relied on the holding of Hinojosa-Lopez to dispose of criminal cases with the same issue. One of those cases is United States v. Toledo-Flores, 149 Fed.Appx. 241, 242 (5th Cir. 2005). Reymundo Toldeo-Flores had been convicted of illegal entry. On appeal, he argued that his state felony conviction for possession of cocaine did not qualify as an aggravated felony because it was a misdemeanor under the CSA. We affirmed, relying on Hinojosa-Lopez. Id. In an unrelated case, the Eighth Circuit affirmed the Board of Immigration Appeals’ order removing alien Jose Antonio Lopez on the ground that he had previously been convicted of an" }, { "docid": "4899190", "title": "", "text": "United States Immigration and Customs Enforcement (ICE) discovered Bustillos in the Texas prison in Huntsville, Texas. Bustillos was subsequently indicted for being present in the United States illegally after having been deported for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He pleaded guilty on October 21, 2008. Bustillos’s Pre-Sentence Investigation Report (PSR) recommended a sixteen-level increase in his offense level under § 2L1.2 of the Sentencing Guidelines, because it found that he had been deported after a conviction for a drug trafficking offense for which the sentence imposed exceeded thirteen months. Bustillos objected to this enhancement on the ground that a prison sentence had not been imposed until after he had reentered the country. Thus, he argued, he had not been deported after a sentence was imposed that exceeded thirteen months. The district court found that the temporal constraint of § 2L1.2 was satisfied, because it viewed Bustillos’s sentence as relating back to his conviction, which had occurred before his deportation. Accordingly, the district court adopted the PSR’s recommendation over Bustillos’s objection and calculated his offense level to be twenty-one, after subtracting three points for acceptance of responsibility. It found that he had eleven criminal history points, giving him a criminal history category of V. After hearing his arguments for a downward departure, it sentenced him to sixty-nine months’ imprisonment, one month below his thus calculated guideline range of seventy to eighty-seven months. Bustillos timely filed a notice of appeal. DISCUSSION On appeal, Bustillos contends that the district court erred by applying the sixteen-level enhancement to his sentence. He asserts that the plain language of § 2L1.2 indicates that the sixteen-level enhancement only applies where a defendant was deported after the imposition of a prison sentence exceeding thirteen months. In the alternative, he argues that the guideline is ambiguous on the facts of his case and that the rule of lenity requires it to be interpreted in his favor. 1. Standard of Review We review a district court’s interpretation of the Sentencing Guidelines de novo. United States v. Velez-Alderete, 569 F.3d 541, 543 (5th Cir.2009)" }, { "docid": "23492966", "title": "", "text": "illegally after deportation, in violation of 8 U.S.C. § 1326. The presentence report (“PSR”) calculated RodriguezUVIontelongo’s total offense level as 21. This computation included a base offense level of 8, an increase of 16 levels because of the prior felony drug conviction, and a downward departure of 3 levels for acceptance of responsibility. He was also assigned a criminal history category of II based upon his prior felony drug conviction and the fact that he was on probation at the time this illegal reentry was attempted. Accordingly, the PSR recommended a guideline sentence range of 41 to 51 months. Rodriguez-Montelongo objected to the recommended range, arguing that the offense charged in the indictment carried a maximum penalty of two-years imprisonment. At sentencing, the district court concluded that Rodriguez-Montelongo had a qualifying prior aggravated felony drug conviction, which required an enhancement of his sentence under 8 U.S.C. § 1326(b)(2) and § 2L1.2(b)(l)(A) of the United States Sentencing Guidelines (the “Guidelines”). The court then adopted the PSR’s sentence-range recommendation. Furthermore, the district court denied Rodriguez-Montelon-go’s motion to depart downward from the guideline range on the ground of cultural assimilation, stating that “to this point the Fifth Circuit has not recognized [cultural assimilation] as a basis for departure, and until they do I’m not going to depart on that basis.” Consequently, the district court imposed a sentence of 41-months imprisonment. Rodriguez-Montelongo appeals his sentence. II. APPELLATE JURISDICTION A court of appeals is “generally without jurisdiction to review a sentencing court’s refusal to grant a downward departure when its decision is based upon a determination that departure was not warranted on the facts of the case before it.” United States v. Thames, 214 F.3d 608, 612 (5th Cir.2000); see also United States v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir.1999). Accordingly, this court has jurisdiction over the appeal from the district court’s refusal to depart downward only if the refusal was in violation of the law. See United States v. Garay, 235 F.3d 230, 232 (5th Cir.2000), cert. denied, — U.S.-, 121 S.Ct. 1633, 149 L.Ed.2d 494 (2001); United States v. Yanez-Huerta, 207 F.3d" }, { "docid": "7556910", "title": "", "text": "for illegal reentry was eight. See U.S.S.G. § 2L1.2(a). The presentence investigation report (PSR) recommended adding sixteen offense levels based on U.S.S.G. § 2L1.2(b)(l)(A)(ii), which provides that the court should increase a defendant’s offense level for illegal reentry by sixteen points if the defendant has previously been deported after committing a “crime of violence.” The PSR noted that Garcia-Caraveo had been deported subsequent to a conviction for felony robbery in California and, therefore, was subject to this sixteen-point increase. The PSR further recommended a three-level reduction for acceptance of responsibility under § 3E1.1, so Garcia-Caraveo’s final recommended offense level was twenty-one. The PSR calculated Garcia-Caraveo’s criminal history category as III. His Guidelines sentence range was, therefore, 46-57 months. Garcia-Caraveo objected to the sixteen-level increase before the district court, but argued only that his conviction for felony robbery in California occurred approximately fifteen years before he was deported, and so that deportation should not be considered “subsequent to” his felony conviction. At his sentencing hearing, the district court agreed to modify the relevant language in the PSR to read that he was “deported on May 17, 2000, after a conviction in 1986 for robbery.” (ROA Vol. Ill at 8.) Garcia-Caraveo agreed that this amendment resolved the concerns he had raised in his objection to the PSR. The district court then sentenced Garcia-Caraveo to forty-six months, the bottom end of the Guidelines range. This timely appeal followed. II. Analysis A. Standard of Review For the first time in this appeal, Garcia-Caraveo argues that his felony robbery conviction in California does not constitute a “crime of violence” under Guidelines § 2L1.2(b)(l)(A)(ii). Typically, the interpretation of a provision of the Sentencing Guidelines would be a question of law that we would review de novo. See United States v. Zuniga-Soto, 527 F.3d 1110, 1116-17 (10th Cir.2008). Because Garcia did not present this argument to the district court, however, our review is limited to plain error. See United States v. Juarez-Galvan, 572 F.3d 1156, 1158 (10th Cir.2009). “We find plain error only when there is (1) error, (2) that is plain, (3) which affects substantial rights," }, { "docid": "22583775", "title": "", "text": "SELYA, Circuit Judge. Defendant-appellant Rafael Turbides-Leonardo (Turbides) pleaded guilty to one count of illegally reentering the United States following an earlier deportation after his conviction for an aggravated felony. In this sentencing appeal, Turbides attacks both the district court’s calculation of his guideline sentencing range (GSR) and the reasonableness of his 48-month sentence. After careful perscrutation, we affirm. I. BACKGROUND Turbides is a native and citizen of the Dominican Republic. In 1999, the Immigration and Naturalization Service deported him from the United States following his 1997 felony conviction in the Puerto Rico courts. He illegally reentered the United States sometime between July 2003 and July 2004. On January 31, 2005, the authorities apprehended him as part of an ongoing investigation into drug smuggling, narcotics trafficking, and money laundering. An indictment for illegal reentry followed. See 18 U.S.C. § 1326. Once Turbides pleaded guilty to the charge, a probation officer prepared a pre-sentence investigation report (PSI Report). The PSI Report contemplated a total offense level (TOL) of 21, a criminal history category of II, and a GSR of 41-51 months. In arriving at the TOL, the probation officer factored in a 16-level enhancement pursuant to USSG § 2L1.2(b)(l)(A) (2004). The enhancement rested upon a determination that Tur-bides’s 1997 conviction, which carried a sentence in excess of 13 months, constituted a conviction for a drug trafficking offense within the purview of the aforementioned sentencing guideline. Turbides did not object to this determination, nor did he protest any of the other guideline calculations limned in the PSI Report. He did, however, beseech the sentencing court to deviate downward from the GSR. The court demurred and imposed a 48-month incarcerative term. This timely appeal ensued. II. ANALYSIS In this forum, the appellant calumnizes both the 16-level enhancement and the overall sentence. We discuss these claims of error sequentially. A. The Enhancement. USSG § 2L1.2 directs a 16-level increase in offense level for illegal reentry cases “[i]f the defendant previously was deported ... [after] a conviction for a felony that is ... a drug trafficking offense for which the sentence imposed exceeded 13 months.... ”" }, { "docid": "23447639", "title": "", "text": "years’ probation; however, the court also ordered Hernandez to serve two months in jail as a condition of probation. Hernandez contended that his prior felony was not an aggravated felony for sentencing purposes because the statute of conviction included conduct that does not qualify as an aggravated felony. He further contended that the government had failed to establish by clear and convincing evidence that his prior conviction was for an aggravated felony. The district court rejected Hernandez’s arguments and adopted the facts as set forth in the PSR and the Addendum to the PSR. Based on an offense level of 17 and a criminal history category of III, the guideline range was 30-37 months. The court sentenced Hernandez to 30 months’ imprisonment. STANDARD OF REVIEW The district court’s decision that a prior conviction is a qualifying offense for a sentencing enhancement pursuant to U.S.S.G. § 2L1.2 is reviewed de novo. See United States v. Soberanes, 318 F.3d 959, 961 (9th Cir.2003) (reviewing de novo the question of whether a defendant’s prior conviction qualifies as an aggravated felony for purposes of § 2L1.2). We review the district court’s interpretation of the sentencing guidelines de novo. Id. DISCUSSION Section 2L1.2 of the sentencing guidelines is the guideline applicable to a violation of 8 U.S.C. § 1326. The guideline provides a base offense level of 8, with the possibility of various increases in offense level if the defendant previously was deported after certain qualifying convictions. The provision that was applied in the instant case is a 12-level increase if the defendant previously was deported after “a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less.” U.S.S.G. § 2L1.2(b)(l)(B). The Arizona state court plea agreement stated that Hernandez pled guilty to “Attempted Sale of Narcotic Drugs, a Class 3 Felony, in violation of ARS §§ 13-1001, - 3401, -3408, -3418, -701, -702 and -801.” In the judgment, the court ordered that the sentence be suspended and placed Hernandez on probation for four years. The court “further f[ound] that the terms of probation should include incarceration in" }, { "docid": "9512", "title": "", "text": "for acceptance of responsibility. The district court accepted Heckel’s plea. The probation office calculated a total offense level of 11 under the sentencing guidelines, which included a base offense level of 7 plus a 4-level increase because the amount of loss was more than $10,000 but less than $30,000. U.S.S.G. § 2Bl.l(a)(l) & (b)(1)(C) (2006). The PSR also applied the two-level reduction for acceptance of responsibility, id. § 3El.l(a), but then added two levels because the offense was committed through “mass-marketing,” id. § 2Bl.l(b)(2)(A)(ii). Heckel objected to the application of the mass-marketing enhancement. For Heckel’s criminal-history score, the PSR initially assessed 12 points, placing him in criminal-history Category V. Heckel made two objections to this total. The probation office then agreed with one of these objections and issued an addendum reducing Heckel’s score to 10, the minimum for Category V. The probation office disagreed with Heckel’s second objection— relating to his state conviction for theft— and refused to reduce Heckel’s total any further. The district court accepted the reduction from 12 to 10 points, but did not specifically address Heckel’s objection regarding the treatment of his theft conviction. As a result, Heckel remained in criminal-history Category V. The court also rejected Heckel’s challenge to the application of the mass-marketing enhancement, so the guidelines recommended a range of 24-30 months. Commenting on Heckel’s extensive criminal past and the need to deter any future criminal behavior, the court sentenced Heckel to 30 months in prison and 3 years of supervised release. Heckel appealed. II. Analysis Our review of a district court’s application of the guidelines is de novo, but we review findings of fact for clear error. United States v. Samuels, 521 F.3d 804, 815 (7th Cir.2008). Sentencing factfinding is entitled to deference “ ‘unless we have a definite and firm conviction that a mistake has been made.’” Id. (quoting United States v. Wilson, 502 F.3d 718, 721 (7th Cir.2007)). A. Mass-marketing Heckel first argues that the district court incorrectly calculated his offense level because the court added two levels for use of “mass-marketing.” U.S.S.G. § 2Bl.l(b)(2)(A)(ii). The commentary to this guideline" }, { "docid": "6253174", "title": "", "text": "into the truck near Del Rio, Texas. Yanez-Huerta pleaded guilty to a charge of unlawful reentry as a deported alien. See 8 U.S.C. § 1326 (1994). He was subject to a 16-level increase to his sentence under United States Sentencing Guideline (“U.S.S.G.”) § 2L1.2, because of his earlier conviction for cocaine possession. In the presentence report, the probation officer recommended that Yanez-Huerta’s offense level be tripled, from level 8 to level 24, to reflect the earlier conviction for an “aggravated felony.” See § 2L1.2(b)(l)(A). After a three-level reduction for acceptance of responsibility, pursuant to § 3E1.1, Yanez-Huerta’s total offense level was 21 and his criminal history category was IV, resulting in a guideline range of 57 to 71 months. Yanez-Huerta did not challenge the guideline calculation, but did move for a downward departure pursuant to U.S.S.G. § 2L1.2, Application Note 5. Note 5 provides for a two-level downward departure when a criminal defendant has only a single non-violent underlying felony that resulted in a “term of imprisonment imposed” of less than one year. Appellant’s eligibility for this particular departure hinged entirely on whether his five-year suspended sentence qualifies as a “term of imprisonment imposed” of less than one year. Essentially, appellant argues that “term of imprisonment imposed” should be read as “term of imprisonment served.” The district court rejected this argument, denied Yanez-Huerta’s motion for departure, and sentenced him to 57 months imprisonment. Yanez-Huerta appeals, challenging only the denial of his motion for a downward departure. II. This court reviews a district court’s application and interpretation of the Sentencing Guidelines de novo and its findings of fact for clear error. See United States v. Sharpe, 193 F.3d 852, 872 (5th Cir.1999). However, this court has jurisdiction to review a defendant’s challenge to a sentence only if it was (1) imposed in violation of law, (2) imposed as a result of an incorrect application of the Guidelines, (3) resulted from an upward departure, (4) or was unreasonably imposed for an offense not covered by the sentencing guidelines. See United States v. Ogbonna, 184 F.3d 447, 451 (5th Cir.1999). “The imposition of" } ]

[ { "docid": "16005082", "title": "", "text": "On the assumption that Sandsend is a partnership, the FHLBB served the subpoena on two “principals” of Sandsend. Sandsend complains that it is a Jersey Channel Island corporation and that service on the individuals is improper. Nevertheless, the FHLBB’s manner of service provided Sandsend actual notice of the subpoena. As Sandsend knew of the subpoena in time to challenge it, the FHLBB’s manner of service, even if technically defective, constitutes substantial compliance. Finding no ground upon which to rest an af-firmance of the district court, we REVERSE and direct the district court to ENFORCE the subpoena. . An affiliate is defined by cross or mutual stock ownership with the insured institution. 12 U.S.C. Section 221a(b). . This tract of land is contiguous to the four tracts that Vision Banc’s borrowers purchased with the proceeds of their Vision Banc loans. . The RFPA permits the FHLBB to respond to a motion to quash in camera. 12 U.S.C. Section 3410(b). Upon filing its motion for reconsideration, the FHLBB also filed a motion requesting in camera review of the motion. Sandsend vigorously opposed in camera review. Curiously, the court never ruled on the FHLBB’s motion for in camera review — it simply denied the motion to quash, without mentioning the motion for in camera review. . In addition to its express provision of a far-reaching subpoena power, Section 1730(m)(2) contains an enforcement provision that contemplates an extensive power. To enforce a subpoena, the FHLBB may apply to the district cotut where the insured bank or affiliate is located or where “the witness resides or carries on business.” Section 1730(m)(2). If Congress were granting a power that extended only to insured institutions and affiliates, it would not need to provide for enforcement in a location different than the insured institution or affiliate’s location. Allowing an enforcement action in the district where the witness resides implies that the subpoena power extends beyond the insured institution and its affiliates. . Sandsend contends that the FHLBB had actual notice of the motion because it served the motion on the FHLBB. That may well be so, but actual" } ]

[ { "docid": "13013384", "title": "", "text": "authorizing the instant investigation; 2) the Commission’s consideration of respondents’ motion to quash the subpoenas, including alleged prior ex parte contact by the Commission staff; 3) prior breaches of confidentiality assurances by the Commission; and 4) the Commission’s compliance, if any, with the Federal Reports Act, 44 U.S.C. §§ 3501 et seq. To warrant discovery in a summary subpoena enforcement proceeding respondents must make a strong showing of need. They have failed to make such a showing. First, any discovery purporting to determine the “actual” rather than expressed purpose behind the Commission’s actions in authorizing and conducting the investigation would be useless, since the Court must look to the resolution and subpoenas as issued to determine the validity of the investigation. Further, since the Court views an enforcement proceeding de novo, information relating to alleged administrative improprieties is irrelevant to this proceeding. Respondents claim a need for discovery concerning alleged prior breaches of confidentiality assurances by the Commission, contending that they then could demonstrate their need for a protective order preventing FTC disclosure of subpoenaed material. There is a substantial question whether such a protective order is ever appropriate at this stage in the proceedings, see FTC v. Texaco, Inc., 180 U.S.App.D.C. at 411-13, 555 F.2d at 883-85, and thus the discovery requested can be rejected on that basis alone. More important, information as to prior instances in which the FTC has allegedly breached assurances hardly justifies the conclusion that it will do so in the present situation, especially when the agency has not yet had the opportunity to indicate what confidentiality protections it is willing to provide. See id. The respondents’ requested discovery concerning the Commission’s compliance with the Federal Reports Act similarly must be denied. The law is clear that the Act is inapplicable to administrative subpoenas such as those involved here. See p. 642, infra. 5. Motion to Dismiss for Failure to Comply with Federal Rules of Civil Procedure 3, 4 and 13(a) Respondents contend that the Commission improperly commenced this suit, since it did not file a complaint and issue a summons as required by Rules" }, { "docid": "23708538", "title": "", "text": "process and otherwise, required by the Constitution and the common law. 2. Respondent was not formally notified upon amendment of the charge that the Commission’s investigation was being conducted pursuant to the ELI program. 3. The reasons for the Commission’s amendment of the charge have not been disclosed to, and have been illegally withheld from, Respondent in violation of Respondent’s due process rights. 4. The amended charge is vague; further, the Commission has refused to define the scope or purpose of its investigation and has, thus, jeopardized Respondent’s ability to defend itself. For example, see EEOC Compliance Manual § 22.3. 5. The amended charge is illegal because it exceeds the scope and intent of the original charge. Further, the investigation and information requested exceed the permissible scope of an ELI investigation. 6. The amended charge is untimely. 7. The Commission is without authority to require the compilation of information requested by the subpoena and may only require the production of specifically identified documents or oral testimony of witnesses. 8. The request is unreasonably burdensome, vexatious and oppressive and impossible to comply with within the time permitted. 9. The information requested is irrelevant and immaterial and beyond the scope of the original and amended charges. 10. The subpoena seeks information for a time period which is barred from consid eration by the statute of limitations, laches, and the Commission’s bad faith and delay in conducting the investigation herein. 11. Some of the information requested, such as EEO-1 reports, is already in the possession of the Commission and is, thus, duplicative and readily available to the Commission. 12. The subpoena requests confidential information relating to executives and other employees beyond the scope of the original and amended charges. 13. The Commission, having initiated the amendment to the original charge, is biased or otherwise incapable of investigating the amended charge in a manner which affords Respondent its due process right to an impartial investigation. 14. The procedure for challenging the subpoena herein is unconstitutional because it denies Respondent the right to present evidence before the Commission and to be heard upon the issues" }, { "docid": "21999566", "title": "", "text": "n.64 (D.C. Cir. 1977). In that case the court did not have before it a protective order entered by an ALJ and adopted with modification by the Commission, on review only as to statutory authority, and whether the order constituted an abuse of discretion. The court in FTC v. Texaco, Inc. was faced with confidentiality protections imposed by the district court in a subpoena enforcement action and a proposed protective order submitted by the FTC. 555 F.2d at 871, 884 & n.64. . The Commission noted during oral argument on this matter that not only do respondents have temporary judicial relief available to them at the time of disclosure, but they also seek protection from the congressional subcommittee or committee that requests the data. . Texaco also has directed the court’s attention to the Commission’s recent order granting in part and denying in part complaint counsel’s motion for leave to modify discovery requests, pending application for interlocutory review and to obtain an expedited decision on the modified application. In re Exxon Corp., Docket No. 8934 (November 10, 1977). This order dealt with future discovery in the administrative proceeding and is not relevant to this court’s consideration of enforcement of the present subpoenas, except that it renders moot Texaco’s motion to suspend or deny enforcement of the subpoenas pending action by the Commission on complaint counsel’s appeal concerning the remaining parts of the subpoena application. . The Commission correctly notes, however, that informal agreements between complaint counsel and respondents concerning the method and manner of production of subpoenaed documents do not alter the terms of the subpoenas and the responsibility of the corporate officers named in the subpoenas. See FTC v. MacArthur, 532 F.2d 1135, 1141 (7th Cir. 1976)." }, { "docid": "23708524", "title": "", "text": "by the due process clause. EEOC v. Quick Shop Markets, Inc., 526 F.2d 802, 803 (8th Cir. 1975). Bay did not file any affidavits before the EEOC or in the district court demonstrating a material factual dispute. Therefore there was no need for the district court to delay the proceedings further by permitting Bay still another opportunity to respond. Bay relies on United States v. Kis, 658 F.2d 526 (7th Cir. 1981) in an effort to show that the district court was required to allow further answers and accord a judicial hearing. However, that case involved Internal Revenue Service tax summons proceedings which are sometimes brought for the improper purpose of obtaining evidence for use in a criminal proceeding. We held in Kis that a taxpayer is not entitled to an evidentiary hearing unless he shows facts demonstrating wrongful conduct by the Government. 658 F.2d at 540. Since no such showing was made by Bay and the affidavit and exhibits submitted with the application for enforcement show no abuse of process (App. 29-124), no adversarial hearing was required here. Id. As concluded in Kis, “If the [respondent] has not alleged specific facts that permit an inference of some improper purpose on the part of the Government, the district court should promptly order enforcement of the summons.” 658 F.2d at 544. As similarly held in National Labor Relations Board v. Interstate Dress Carriers, Inc., supra, 610 F.2d at 112, unless the subpoenaed party comes “forward with facts suggesting that the subpoena is intended solely to serve purposes outside the purview of the jurisdiction of the issuing agency,” the district court “should, in a § 11(2) enforcement case [like this one], act summarily.” Because Bay has not shown that the EEOC investigation was undertaken for an ulterior purpose, Judge Evans was empowered to act summarily. Other Objections to the Subpoena Were Properly Overruled. Bay additionally argues that the subpoena should not be enforced in view of supposed deficiencies in Keller’s amended charge. However, such deficiencies are immaterial because the scope of the EEOC investigation is permissible even without the amendment. The initial" }, { "docid": "20890204", "title": "", "text": "filed by the Respondents, who are the plaintiffs in the Arizona Case. For the reasons set out below, three of the motions are denied as moot and the last motion, which was most recently filed by the Petitioner, is transferred to the court presiding over the Arizona Case. 1. BACKGROUND A brief summary of the procedural background provides helpful context to understand the Court’s resolution of the pending motions. The Respondents have served three subpoenas on the Petitioner. The Petitioner produced approximately 44 documents in response to the first subpoena, served on January 8, 2014 (“January Subpoena”), but withheld 103 documents on attorney-client and attorney work product privilege grounds because some of the withheld documents apparently include communications with an Arizona legislator. Resp’ts’/Cross-Pet’rs’ Transfer Mot., Ex. F, Decl. of Justin B. Cox (“Cox Deck”) ¶¶ 8-9, ECF No. 8-4; Pet’r’s Mot. to Quash and/or for Protective Order (Pet’r’s Mot. Quash Aug. Subpoena”) ¶ 3, ECF No. 24 (noting that Petitioner has “produced 282 pages of responsive documents to plaintiffs” and is withholding an unspecified number “under the attorney-client privilege and attorney work product doctrine”). Ultimately, the Petitioner declined to produce additional documents, contending that the January Subpoena “was unenforceable because it initially requested that documents be sent more than 100 miles from its place of business in Washington, D.C.” Resp’ts’ Transfer Mem. at 4. The Respondents addressed the purported deficiency in the January Subpoena identified by the Petitioner and served a second subpoena on May 7, 2014 (“May Subpoena”), which requested production of documents reflecting “communications between Judicial Watch and ‘ARIZONA STATE OFFICIALS’ (a defined term)” and provided a place of production in Washington, D.C. Id. Shortly thereafter, the Petitioner initiated this suit by moving to quash the May Subpoena on the ground of invalid service. Pet’r’s/Cross-Resp’t’s Mot. to Quash May Subpoena, at 3, ECF No. 1. The Respondents filed a cross-motion to compel compliance with both the January and May Subpoenas, Resp’ts’/Cross-Pet’rs’ Mot. to Compel, ECF No. 7, and to transfer both the motion to quash and the cross-motion to compel to the District of Arizona, Resp’ts’/Cross-Pet’rs’ Mot. to" }, { "docid": "13115707", "title": "", "text": "by the Oklahoma Commission Respondent contends that the Commission’s subpoena is oppressive and burdensome as it was issued without consideration of information given to the Oklahoma Human Rights Commission and to EEOC. Following respondent’s receipt of the Oklahoma Human Rights Commission’s Notice of Complaint and Complaint of Discrimination, the respondent submitted a detailed account of Ms. McDuffy’s personnel history with respondent. Thereafter, upon receipt of a Notice of Charge of Discrimination from the Commission, respondent submitted the same information to that agency. The Commission replied that an investigation would commence “in the near future,” and that the information furnished it by the respondent would “become part of the investigation.” The Company’s next contact with the Commission came some eight months later, when the Commission requested further information. The Company again, as in the Cross matter, relies on § 24.1(a) of the Compliance Manual. It contends that the Commission failed to recognize the Company’s voluntary cooperation in the investigation, by both the Oklahoma Human Rights Commission and the Commission’s Albuquerque office, and thus issued its subpoena despite the likelihood of success of other, more “normal investigative methods.” As stated with respect to the Cross matter, the Commission is entitled to request further information from an employer if it is not satisfied with that obtained to date. It is not for this Court to determine whether the Commission could make a fair determination of the existence of reasonable cause on the information before it already or whether more information is necessary. The fact that the respondent has offered some information voluntarily to the Commission is commendable but does not operate to cut off the Commission’s right to investigate further. Relevance The subpoena demands access to some five different personnel forms and reports of all employees in the Oklahoma City office for the period January 1, 1970 through January 1, 1975, identified by race, sex and national origin. Respondent contends that the Commission’s demand that the records be identified according to sex and national origin, forms of discrimination never alleged in Ms. McDuffy’s charge, is wholly irrelevant to the resolution of the underlying" }, { "docid": "21999562", "title": "", "text": "documents are premature, it is hereby ORDERED that all respondents appear before a duly designated representative of the Commission at a time and place in Washington, D. C. to be designated by counsel supporting the Commission’s complaint upon not less than ten (10) days notice, and then and there testify and produce documents as required by the subpoenas duces tecum issued by the Commission on November 24, 1976, as modified by the orders of November 24, 1976 and January 13, 1977, of the administrative law judge, copies of which subpoenas are Attachments 1A-1F to the petition; and it is further ORDERED that respondents’ request for a protective order is denied; and it is further ORDERED that all respondents’ counterclaims are dismissed as without merit insofar as they relate to defenses to the petition or to the need for a protective order and otherwise as premature; and it is further ORDERED that the individual respondents’ motion to be dismissed from the proceeding are denied; and it is further ORDERED that the motion of Texaco, Inc. to suspend or deny enforcement of the subpoenas pending action by the Commission on complaint counsel’s appeal concerning a subpoena application is denied as moot. . The Commission reviewed and modified paragraph 9 of the protective order. Paragraph 9, as modified, provides that if the FTC receives an official request from a committee or subcommittee of Congress the FTC is to inform the committee that the company supplying the information considers the material confidential and is to give the supplying company ten days notice prior to disclosure, where possible, and “in any event as much advance notice as reasonably can be given.” If a request is made by a private citizen or an individual member of Congress, the FTC must treat the application as made under the Freedom of Information Act, 5 U.S.C. § 552 (1970 & Supp. V 1975), and give the supplying company ten days notice prior to the disclosure of confidential information. ALJ’s Protective Order of January 5, 1977, as modified by, Commission’s Order of January 31, 1977. . The term “joint respondents”" }, { "docid": "22773308", "title": "", "text": "to the complaint filed in this action USSF has helped provide civilian legal defense for military personnel, and books, newspapers, and library material on request. App. 11. Ibid. The subpoena at issue here directed “Any U. S. Marshal” to serve and return, but there is no proof of service in the record. The Subcommittee had issued two previous subpoenas duces tecum to the bank, but they had been withdrawn because of procedural problems. Apparently, at least one of those subpoenas actually was served on the bank. Id., at 13. The other subpoena also may have been served because the bank informed respondents of its existence. Id., at 14'. Respondents claim all three subpoenas are substantially identical. Apparently, at least partially because the bank was never served, Tr. of Oral Arg. 22, 46, it has not participated in the action. Id., at 15, 19-20, 21-22. Therefore, as the case reaches us only the Senators and the Chief Counsel are active participants. App. 16. Id., at 17-18. Id., at 18. On June 1, the District Court refused to enter a temporary restraining order, but on June 4 the Court of Appeals stayed enforcement of the subpoena pending expedited consideration of the matter by the District Court. The Court of Appeals reasoned that the threat of irreparable injury if the subpoena were honored, and the significance of the issues involved, necessitated “the kind of consid.eration and deliberation that would be provided by ... a hearing on an application for injunction.” Id., at 22. One judge dissented. After the Court of Appeals stayed enforcement of the subpoena the District Court held an expedited hearing on respondents’ motion for a preliminary injunction and petitioners’ motion to dismiss. Afterwards the District Court denied both motions; however, the Court of Appeals again stayed enforcement of the subpoena pending further order. At that time the Court of Appeals ordered the District Court to proceed to final judgment on the merits, with a view to consolidating any appeal from that judgment with the appeal on the denial of a preliminary injunction. The District Court then took testimony on the" }, { "docid": "23708530", "title": "", "text": "the employer raises a substantial question that judicial enforcement of the administrative subpoena would be an abusive use of the court’s process. See EEOC v. University of New Mexico, supra, 504 F.2d at 1303; Food Town Stores, Inc. v. EEOC, 25 EPD (CCH) ¶ 31,489 at 18,958 (M.D.N.C.1980). There was no such showing here. The company urges too that the EEOC has no authority to require it to compile information. This hoary point has already been correctly rejected in other EEOC cases. New Orleans Public Service, Inc. v. Brown, 507 F.2d 160, 165 (5th Cir. 1975); Motorola v. McLain, 484 F.2d 1339, 1346 (7th Cir. 1973), certiorari denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 287. Finally, Bay opposes enforcement of the subpoena on the ground that it is unduly burdensome. An identical argument has routinely been rejected in EEOC and related cases unless compliance would threaten the normal operation of a respondent’s business; there has been no such showing here. If a respondent lacks the information necessary to respond to part of a subpoena, of course it would be excused pro tanto. H. Kessler & Co. v. EEOC, 53 F.R.D. 330, 336 (N.D.Ga.1971), modified on other grounds, 472 F.2d 1147 (5th Cir. 1973), certiorari denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 398. Again Bay has made no such showing. Bay had ample opportunity to demonstrate before the EEOC that it would be unduly burdened by the subpoena, but in its petition to revoke the subpoena and its administrative appeal from the adverse ruling of the EEOC’s District Office it did not show how the subpoena might be unduly burdensome nor did it present any affidavits to support its conclusionary assertion to that effect. Similarly, in its motion to dismiss and supporting briefs it did not demonstrate to the district court why it would be unduly burdened by the subpoena. Therefore Judge Evans was justified in holding that the requests made in the subpoena were not unduly burdensome. In denying a stay to Bay Shipbuilding, the district judge commented that Bay had already “stalled off the subpoena" }, { "docid": "23589628", "title": "", "text": "1996, to respond to or object to the subpoena,” (Getzendanner Aff., ¶ 2), and asked plaintiffs’ counsel “for clarification of the breadth of the subpoena and for additional time within which to respond to or object to the subpoena.” Id., ¶ 3; see (Plaintiffs’ Memo at 10.) Plaintiffs’ counsel refused Getzendanner’s requests. (Getzendanner Aff., ¶ 3); see (Plaintiffs’ Memo at 11.) According to Getzendanner, because plaintiffs counsel refused to grant Merrill another extension of time, “Merrill Lynch is forced to quash the subpoena.” (Getzendanner Aff., ¶ 5.) On October 2,1996, Skadden, on behalf of Merrill Lynch, filed with the Clerk of the Court of the Southern District of New York on Order to Show Cause “why the subpoena dated July 31, 1996 and served on Merrill Lynch on behalf of plaintiffs should not be quashed pursuant to Fed.R.Civ.P. 45 and 26.” (Order, Concord Boat Corp. v. Brunswick Corp., No. M. 8-85 (“October Order”) (S.D.N.Y. Oct. 2, 1996).) Judge Kaplan, sitting in Part I, found- that Merrill Lynch’s “application fails to demonstrate any urgency or to comply with S.D.N.Y. Rule 3(c)(4),” and “declin[ed] to bring on the motion earlier than could be accomplished by notice of motion.” Id. at 2. Judge Kaplan signed the order, however, “simply to avoid unnecessary paperwork,” and ordered the parties to file papers and to appear for argument before the subsequent Part I Judge. Id. Counsel for both Merrill Lynch and plaintiffs appeared before this Court, sitting in Part I, on October 15, 1996. After submitting their respective papers to this Court, both counsel waived oral argument and consented to this Court deciding the instant matter on submission. DISCUSSION Merrill Lynch moves this Court to quash the Brunswick Subpoena pursuant to Federal Rules of Civil Procedure 45(c)(3)(A) and 26(c). (Merrill’s Memo at 1.) It asserts that “the subpoena is manifestly overbroad, and compliance with it would place an undue burden on Merrill Lynch.” Id. at 2. Plaintiffs’ reject this characterization, claim that Merrill waived its right to object to the Brunswick Subpoena because Merrill failed to timely respond to the Brunswick Subpoena, and that Merrill has" }, { "docid": "22857552", "title": "", "text": "in Washington, D.C., rather than Philadelphia, because “more was at stake than the single question of the Commission’s possible enforcement of the its subpoena against the University.” Brief for Appellant at 6. The EEOC instituted its subpoena enforcement action on June 19, 1987 in the Eastern District of Pennsylvania. At that point, therefore, each party had filed suit relating to the validity of the EEOC subpoena, but the suits were pending in different federal district courts. Citing our decision in Crosley, the University sought dismissal of the enforcement action in favor of its previously filed suit in the District of Columbia. In the event the action was not dismissed on comity grounds, the University requested an opportunity to raise its constitutional and APA defenses when the Eastern District of Pennsylvania court considered the subpoena enforcement question. It then sought discovery to support those claims. The EEOC opposed the discovery requests, arguing that the constitutional and APA issues could not be considered in the enforcement action. The Eastern District of Pennsylvania judge heard oral argument July 2, 1987 on the University’s motion to dismiss. See J.A. at 44-76 (transcript of oral argument). The trial judge posited that the University filed the first action in the District of Columbia to avoid an adverse decision in this circuit based on Franklin & Marshall: As I see it, ... we have ... a case on point ... and maybe you were looking somewhere else, that you thought might result in something different than they did ... in the Third Circuit. That is possible, isn’t it? ... Isn’t that why you did it? J.A. at 55-56. The University’s counsel responded that avoidance of Franklin & Marshall “may have been a consideration ... but we did not choose a forum that was inappropriate for the action that we brought.” Id. at 56; accord Transcript of Oral Argument at 4, 5 (3d Cir. February 25, 1988). On September 1, 1987, the Eastern District of Pennsylvania judge denied the motion to dismiss, ordered the University to comply with the subpoena within ten days, and denied the University’s discovery" }, { "docid": "17052380", "title": "", "text": "In an order entered on November 11,1976, the ALJ authorized the subpoenas as part of the initial discovery in the Exxon proceeding. The subpoenas duces tecum [hereinafter subpoena] were issued on November 24, 1976. To protect the respondent oil companies against unjustified public disclosure of confidential subpoenaed information, the ALJ issued a protective order on January 6, 1977. On the same day, the ALJ certified paragraph 9 of the protective order (“paragraph 9”) to the Commissioners for their review. See 16 C.F.R. § 23(b). Paragraph 9 describes the procedure to be employed if a request is made for information supplied to the FTC by the respondent oil companies. On January 31, 1977, the Commissioners issued an order modifying paragraph 9. Paragraph 9 provides two different procedures depending on the source of the request for the confidential information. If the FTC receives an official request from- a committee or subcommittee of Congress, the FTC is to inform the committee that the company supplying the information deems the matter confidential and is to give the supplying company “ten days’ prior notice where possible, and in any event as much advance notice as reasonably can be given.” If the request is made by a private citizen or an individual member of Congress, the FTC is to treat the application as made under the Freedom of Information Act and is to give the supplying company ten days’ prior notice of its intent to release the requested information. The notice period is intended to provide the respondents with ample time to seek judicial relief from the impending release. The various plaintiffs in this action have responded differently to the subpoenas issued on November 24, 1976. Exxon and Gulf have begun production of the subpoenaed materials. Counsel for the FTC stated at oral argument that at present Exxon and Gulf are in compliance. The record is somewhat unclear as to the precise steps taken by SoCal, Mobil, Indiana, Atlantic Richfield and Shell (hereinafter referred to as “SoCal plaintiffs”). In any event, the SoCal plaintiffs have been deemed by the Commission not to be in compliance. Because" }, { "docid": "22857551", "title": "", "text": "disclosing tenure review information to the EEOC. J.A. at 11-14. The EEOC notified the University that unless it responded to the subpoena within twenty days of receiving the agency decision, subpoena enforcement proceedings would be initiated. Id. at 14. The University received the EEOC decision on April 14, 1987; thus, the twenty-day grace period expired on May 4, 1987. On May 1, 1987 — three days before expiration of the grace period — the University responded by filing suit for declaratory judgment and injunctive relief in the district court for the District of Columbia. The University claimed the EEOC had violated the first and fifth amendments, see U.S. Const, amend. I, V, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 553 (1982), by adopting a policy that, in practice, constituted a nationwide rule requiring complete disclosure of confidential peer review materials. See J.A. at 148, 153-54, 157. Count IV of the University’s complaint explicitly requested the court to quash the subpoena issued by the EEOC’s Philadelphia office. Id. The University said it filed suit in Washington, D.C., rather than Philadelphia, because “more was at stake than the single question of the Commission’s possible enforcement of the its subpoena against the University.” Brief for Appellant at 6. The EEOC instituted its subpoena enforcement action on June 19, 1987 in the Eastern District of Pennsylvania. At that point, therefore, each party had filed suit relating to the validity of the EEOC subpoena, but the suits were pending in different federal district courts. Citing our decision in Crosley, the University sought dismissal of the enforcement action in favor of its previously filed suit in the District of Columbia. In the event the action was not dismissed on comity grounds, the University requested an opportunity to raise its constitutional and APA defenses when the Eastern District of Pennsylvania court considered the subpoena enforcement question. It then sought discovery to support those claims. The EEOC opposed the discovery requests, arguing that the constitutional and APA issues could not be considered in the enforcement action. The Eastern District of Pennsylvania judge heard oral argument July" }, { "docid": "13115652", "title": "", "text": "instance to any District Director or Deputy District Director. One moving to revoke or modify a subpoena may file a petition with the Director of Compliance. Section 1601.15(b) of the Procedural Regulations states that: Within 5 days after the receipt thereof [of the petition], so far as practicable, the Director of Compliance shall make a determination upon the petition, stating reasons, which shall be reviewed by the Commission and unless the Commission decides otherwise shall become final 3 days thereafter. . The court in Exchange Bank, in holding the above procedures unconstitutional, relied on NLRB v. Duval Jewelry Company, Inc., 357 U.S. 1, 78 S.Ct. 1024, 2 L.Ed.2d 1097 (1958), which held that the NLRB’s delegation to hearing officers and regional directors of authority to issue subpoenas and make preliminary rulings on petitions to revoke those subpoenas did not deprive respondents of due process because the NLRB reserved final determination on the legality of such subpoenas to itself. Specifically, under applicable NLRB Regulations, a respondent was provided an opportunity to request special permission from the NLRB to appeal an adverse ruling on the subpoena. In that event, the NLRB took affirmative action, based on the arguments of the respondent, and would grant or deny the respondent’s request for an appeal. This procedure, the court held, “stands in sharp contrast” to the procedures followed by the EEOC. The Court further stated: The very essence of procedural due process is the right to be heard that is, the right to marshal and present arguments in support of one’s position and to respond to arguments that attack that position. . . . Passive endorsement by the Commission of the finding or reasoning of the Director of Compliance, absent opportunity to the petitioner to attack that finding and reasoning, does not accomplish this. (Ibid.) Respondent urges this Court to adopt the position of the court in Exchange Bank and refuse to enforce the instant subpoenas. This Court, however, is guided by EEOC v. Raymond Metal Products Co., 530 F.2d 590 (4th Cir., 1976), and holds that the procedure governing the issuance of subpoenas is" }, { "docid": "22011959", "title": "", "text": "justify jurisdiction in this court on the basis of 28 U.S.C. § 1337, but it is clear that even were § 1337 applicable, so would the accompanying venue statute, 28 U.S.C. § 1391, and under the latter venue is not properly laid in this district. II. The Claim of Burdensomeness Respondents have also resisted compliance with the subpoenas on the ground that they are burdensome. The only affidavit submitted by respondents, and the oral argument tendered by counsel for respondents, has focused on the pendency of collateral civil antitrust suits against these respondents. Respondents argue that it is unreasonable for them to produce documents for the FTC at a time when they are defending several related antitrust suits wherein some of the same documents are involved. Compliance with any subpoena involves some burden, but the test is whether compliance would be unduly burdensome. The fact that respondents are involved in other suits does not, without more, amount to undue burdensomeness. No doctrine requires that the FTC investigation take a back seat here, and respondents have cited no cases so holding. Conclusion Enforcement of the subpoenas in issue here would not be unduly burdensome, and the court rejects respondents’ argument on that issue. As found above, however, this court lacks jurisdiction to enforce said subpoenas. Accordingly, the petition of the FTC for enforcement is hereby denied. It is so ordered. ORDER ON MOTION OF FTC TO ALTER OR AMEND JUDGMENT On January 26, 1977, this court filed its MEMORANDUM OF DECISION denying the FTC’s petition for enforcement of certain subpoenas duces tecum. A judgment thereon was entered the same day. On February 7, 1977, the FTC filed a notice of motion to alter or amend said judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, and thereafter the parties filed a series of legal memoranda arguing the merits of their respective positions and, in some instances, presenting contentions not theretofore argued before the court. The court entertained oral argument on May 19, 1977, and thereafter took the matter under submission for decision. The FTC’s request for re-examination and" }, { "docid": "3645361", "title": "", "text": "only the personnel files of Brookins but also the personnel files of all teaching personnel in the Economics Department. In response to the EEOC’s latest demand for the personnel files of the Economics Department, the University offered to produce the files, subject to the EEOC signing an agreement requiring that they maintain the confidentiality of the information contained in the personnel files. The EEOC refused to sign the nondisclosure agreement, and then the EEOC issued an administrative subpoena duces tecum requiring the University to provide “copies of the complete personnel records of [the] charging party Oscar T. Brookins, and all other teaching personnel in the Economics Department for the period January 1, 1980 to the present.” After being served with this subpoena duces tecum, the University filed with the EEOC a petition to revoke or modify the subpoena. The district director of the Indianapolis district office of the EEOC denied the University’s petition to revoke or modify the subpoena and ordered the University to produce the documents. The University appealed to the full commission in Washington, which denied the University’s appeal but modified the language of the subpoena to require production of the following evidence: “Copies of the complete personnel records of charging party, Oscar T. Brookins, and all other teaching personnel in the Economics Department for the period January 1, 1980 to the present are requested regardless of whether such teaching personnel were fired by respondent before or after January 1,1980, or left respondent’s employ after January 1, 1980.” The University did not comply with the subpoena and, on March 16,1982, the EEOC filed an application in district court for an order to show cause why the subpoena should not be enforced. The University objected to the EEOC subpoena on three grounds. First, the University argued that the personnel files in question contained peer review evaluations which were made with the assurance and expectation that the evaluations would remain confidential, and therefore the peer review evaluations were protected from disclosure by a qualified academic privilege. The University contended that pursuant to the qualified academic privilege, it should be permitted" }, { "docid": "20890205", "title": "", "text": "“under the attorney-client privilege and attorney work product doctrine”). Ultimately, the Petitioner declined to produce additional documents, contending that the January Subpoena “was unenforceable because it initially requested that documents be sent more than 100 miles from its place of business in Washington, D.C.” Resp’ts’ Transfer Mem. at 4. The Respondents addressed the purported deficiency in the January Subpoena identified by the Petitioner and served a second subpoena on May 7, 2014 (“May Subpoena”), which requested production of documents reflecting “communications between Judicial Watch and ‘ARIZONA STATE OFFICIALS’ (a defined term)” and provided a place of production in Washington, D.C. Id. Shortly thereafter, the Petitioner initiated this suit by moving to quash the May Subpoena on the ground of invalid service. Pet’r’s/Cross-Resp’t’s Mot. to Quash May Subpoena, at 3, ECF No. 1. The Respondents filed a cross-motion to compel compliance with both the January and May Subpoenas, Resp’ts’/Cross-Pet’rs’ Mot. to Compel, ECF No. 7, and to transfer both the motion to quash and the cross-motion to compel to the District of Arizona, Resp’ts’/Cross-Pet’rs’ Mot. to Transfer, ECF No. 8. The Petitioner opposed transfer of these motions, Pet’r’s/ Cross-Resp’t’s Opp’n to Mot. to Transfer, ECF No. 15, and also moved to stay consideration of the merits of the Respondents’ motion to compel compliance with the January and May Subpoenas until the Court had resolved “whether it has jurisdiction to adjudicate the validity of the [May] subpoena and whether the January Subpoena can be enforced,” Pet’r’s/Cross-Resp’t’s Mot. Stay, at 2, ECF No. 13. After briefing on those cascading motions was underway, the Respondents withdrew the May Subpoena. See Resp’ts’/Cross-Pet’rs’ Notice of Withdrawal of May Subpoe na Duces Tecum, ECF No. 19. While this step might have crystalized the issues before the Court and focused on the challenges to the January Subpoena, the Respondents instead served, on August 4, 2014, a third subpoena on the Petitioner (“August Subpoena”). This action prompted the Petitioner to file a motion to quash the August Subpoena. Pet’r’s Mot. to Quash Aug. Subpoena, at I. The Respondents concede that the August Subpoena is virtually identical to both the" }, { "docid": "20890218", "title": "", "text": "the virtually identical August subpoena and the second of which has been withdrawn. See Notice of Withdrawal, ECF No. 19. Thus, this motion is moot. The Court appreciates the Respondents’ contention that the January Subpoena “is in a vastly different procedural posture than the recently served August Subpoena, and is therefore not mooted or otherwise obviated by Plaintiffs’ service of the August subpoena.” Resp’ts’/Cross-Pet’rs’ Resp. OTSC, at 4, ECF No. 26. According to the Respondents, the Petitioner has “waived its opportunity to rebut the arguments in Plaintiffs’ Motion to Compel, which now stands unopposed.” Id. at 4; id. at 5 (“With respect to the January Subpoena, ... Judicial Watch has waived the opportunity to justify its privilege claims, its deficient document search, and its refusal to produce the records in native format.”). Plainly, the Respondents want to avoid the burden of having to file a motion to compel with respect to the August Subpoena and also seek to preserve some perceived advantage in charging the Petitioner with having waived objection to the January Subpoena. Resp’ts’/Cross-Pet’rs’ Mem. Pts & Authorities Opp’n to Pet’r’s/Cross-Resp’t’s Mot. for Protective Order and/or Quash Subpoena Duces Tecum (Resp’ts’ Opp’n Mot for Protective Order and/or Quash Subpoena Duces Tecum), at 9, ECF No. 28 (“Plaintiffs also refuse to withdraw the January Subpoena because ... the motion to compel has been fully briefed, and (iii) starting briefing over with the August Subpoena is both a waste of judicial resources and could provide Judicial Watch a second bite at the apple regarding arguments and objections it waived with respect to the January Subpoena.”). The Court is not persuaded, as strenuously as the Respondents argue, that resolving the Petitioner’s challenges to the validity and enforceability of the January Subpoena is necessary. First, their contention that the Petitioner waived any objection to the January Subpoena is frivolous. The Petitioner effectively sought a delay in any substantive response to the Respondents’ Motion to Compel compliance with the January Subpoena by filing its Motion to Stay. See Pet’r’s Mot. Stay. Second, the Respondents’ service of two subsequent subpoenas, both of which contain modifications" }, { "docid": "13013383", "title": "", "text": "view of the breadth of this cigarette advertising investigation and the strong likelihood that testimony would be required, the Court determines that the Commission acted within its discretion in naming the individual corporate officers. 3. Motion to Dismiss Certain Respondents for Lack of In Personam Jurisdiction Several of the respondents contend that they do not have sufficient “minimum contacts” with the District of Columbia to support personal jurisdiction here. As the Commission points out, however, that principle is inapplicable to a proceeding such as this brought pursuant to congressionally authorized nationwide service of process. 15 U.S.C. § 49. Certain respondents argue that they have not been properly served, and have submitted affidavits to that effect. The Commission argues, and the Court agrees, that even if personal service was not effected, the proper course is to allow reservice nunc pro tunc. They do not argue that they did not receive actual notice, and they are otherwise proper parties. 4. Motion for Limited Discovery Respondents request the opportunity to conduct discovery concerning: 1) the Commission’s official resolution authorizing the instant investigation; 2) the Commission’s consideration of respondents’ motion to quash the subpoenas, including alleged prior ex parte contact by the Commission staff; 3) prior breaches of confidentiality assurances by the Commission; and 4) the Commission’s compliance, if any, with the Federal Reports Act, 44 U.S.C. §§ 3501 et seq. To warrant discovery in a summary subpoena enforcement proceeding respondents must make a strong showing of need. They have failed to make such a showing. First, any discovery purporting to determine the “actual” rather than expressed purpose behind the Commission’s actions in authorizing and conducting the investigation would be useless, since the Court must look to the resolution and subpoenas as issued to determine the validity of the investigation. Further, since the Court views an enforcement proceeding de novo, information relating to alleged administrative improprieties is irrelevant to this proceeding. Respondents claim a need for discovery concerning alleged prior breaches of confidentiality assurances by the Commission, contending that they then could demonstrate their need for a protective order preventing FTC disclosure of subpoenaed" }, { "docid": "13115673", "title": "", "text": "burdensome in that it would require the respondent to assemble an immense amount of information. The Court holds that, assuming it to be true that compliance with the subpoena would be burdensome, burdensomeness alone is not a sufficient basis for refusal to enforce a subpoena. 42 U.S.C. § 2000e-8(a) provides that the Commission shall have access to all information that relates to unlawful employment practices and is relevant to the charge under investigation. It places no limitations on the Commission’s access to materials on the basis of the burden to the company. As the court stated in H. Kessler & Co. v. EEOC, 53 F.R.D. 330 (N.D.Ga. 1971), aff’d, 468 F.2d 25 (5th Cir. 1972), rev’d on other grounds on rehearing en banc, 5 Cir., 472 F.2d 1147, cert. denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 398 (1973): If the information or records sought is relevant or material to the charge under investigation and the EEOC proceeds as authorized by the statute, then any inconvenience or difficulty (which is actually inherent in any compulsory process proceeding) must be considered as a ‘part of the social burden of living under government.’ (53 F.R.D. at 336) The Court will not deny enforcement of the Stulman subpoenas on the grounds of burdensomeness. Conclusion: Stulman The Court, having considered respondent’s arguments and having held these arguments are without merit, will order that the Stulman subpoenas be enforced. II. Statement of Facts: Jethro Charge (HM75-1812) On July 10, 1972, Juanita Jethro filed a charge against the Company with the Commission at its St. Louis District Office. The charge stated: I have been working for the co. for 3 years, 6 months and 6 days. Since this time I have not received a promotion. I was told when I began to work there that promotions were made on a seniority basis. Three white girls have been promoted with less seniority than I. To my knowledge I have never been evaluated by my supervisor, and my work has been as good or better than any of my coworkers. I believe that the failure of my" } ]

[ { "docid": "23082927", "title": "", "text": "“Complaint” which asserted a basis for jurisdiction. American Cast Iron Pipe Company moved for summary judgment on the ground, inter alia, that Wrenn had failed to comply with the court’s March 15 order. The court, classifying that decision as an “extraordinary concession” because it treated Wrenn’s correspondence as tolling the statute, dismissed the action because the filing fee was paid nine days late, commenting that “timely filing is jurisdictional to any court’s entertaining this cause.” The court declined to consider whether Wrenn’s April 4 letter satisfied the pleading requirements of the March 15 order. This Court has indicated that a dismissal under Fed.R.Civ.P. 41(b) for failure to comply with an order of the district court is appropriate only where there is a clear record of delay or contumacious conduct and lesser sanctions would not serve the best interests of justice. Compare Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5th Cir. 1976) (dismissal inappropriate although plaintiff did not comply with order to respond within 10 days to motion to dismiss); Council of Federated Organizations v. Mize, 339 F.2d 898 (5th Cir. 1964) (dismissal inappropriate although plaintiffs did not comply with order to appear in court personally), with Hyler v. Reynolds Metal Co., 434 F.2d 1064 (5th Cir. 1970), cert. denied, 403 U.S. 912, 91 S.Ct. 2219, 29 L.Ed.2d 689 (1971) (dismissal justified when counsel failed to amend complaint over nine-month period and failed to appear at pretrial hearing). See generally Annot. 15 A.L.R.F. 407. This record does not reflect contumacious conduct by Wrenn. The district court’s un-articulated judgment to the contrary may have been influenced by a misapprehension of the law concerning Title VII pleading. First, although it has not been challenged on appeal and will not be reversed here, we note that the trial court’s summary rejection of Wrenn’s request for counsel, without hearing and without consideration of the merit of his claim or his ability to find private counsel, raises serious questions under the standards subsequently announced in Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977). In this context, the command of Haines" } ]

[ { "docid": "7287682", "title": "", "text": "HATCHETT, Circuit Judge: When does a cause of action commence under the Federal Rules of Civil Procedure so as to toll a statute of limitations? We hold that an action commences upon the filing of a complaint, without the further requirement that plaintiff assure speedy service of process. The facts and threshold issues in this case are clearly set out in portions of the trial court’s memorandum opinion and order. It states: “MEMORANDUM OPINION AND ORDER Hs sfc * sfc * :Jt “I. Nature of the Action “This action was originally brought by Plaintiff pursuant to 42 U.S.C. § 1981, alleging racial discrimination in employment against the Defendant, Martin Marietta Corporation. Defendant moved to dismiss the original Complaint on the ground the suit was time-barred for Plaintiff’s failure to comply with the applicable state statute of limitations. Thereafter, and prior to any ruling by the Court on Defendant’s motion to dismiss, the Plaintiff filed an Amended Complaint asserting a claim for relief based on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., in addition to realleging his original claims of racial discrimination in violation of 42 U.S.C. § 1981. In due course, the Defendant, Martin Marietta Corporation, filed its Motion to Dismiss Amended Complaint and/or Motion for Summary Judgment, which is presently before the Court for determination. The decisive question raised is whether Plaintiff timely brought his action against the Defendant, Martin Marietta Corporation, pursuant to the applicable statutory limitations provisions. “II. Background of the Case “The events leading up to the institution of this lawsuit began on January 31, 1975 when Plaintiff, Osborn Levert Caldwell was laid off from active employment with the Defendant, Martin Marietta Corporation. On February 7, 1975 Mr. Caldwell filed a charge with the Equal Employment Opportunity Commission (hereafter “EEOC”) alleging that his lay-off was discriminatory because he was black. On April 29, 1977, the Miami District Office of the EEOC issued its determination denying Mr. Caldwell’s allegations of discrimination on the merits, and issued him a “Notice of Right to Sue” based on the EEOC’s" }, { "docid": "19716645", "title": "", "text": "where a cause of action is created by federal law, such as a Title VII action, under the Federal Rules of Civil Procedure—Rule 3—a cause of action commences, so as to toll the statute of limitations, upon the filing of a complaint, without further requirement that the plaintiff assure speedy service of process. Caldwell v. Martin Marietta Corp., 632 F.2d 1184 (5th Cir.1980). In defendant’s reply brief to its motion to dismiss, defendant also argues that plaintiff is guilty of laches by failing to perfect service of process upon the defendant within a reasonable time after the filing of the complaint. In support of this argument, the defendant directs the court’s attention to Fed.R.Civ.P. 4(j), as amended, which provides: If a service of the summons and complaint is not made upon the defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. Thus, defendant contends that the 120 day period after the February 10, 1983 filing date expired on June 10, 1983, and service of process still has not been perfected on the defendant; therefore, this action should be dismissed. This argument is also without merit. While it is true that plaintiff has not perfected service upon defendant, plaintiff had good cause for not perfecting service. Defendant concedes that on or about May 10, 1983 it received the summons and complaint and acknowledgement of service, however, defendant has in effect evaded service by failing to return the acknowledgement of service. Therefore, defendant cannot be heard to complain that service was not perfected and this action will not be dismissed on this ground. See Notes of Advisory Committee on Rules following Rule 4, 1983 Supplement to Title 28, U.S.C.A., Federal Rules of Civil Procedure, Rules 1 through 11, fn. 24, at 76. D. MOTION TO DISMISS FOR IMPROPER VENUE Defendant contends that this action" }, { "docid": "19716644", "title": "", "text": "is contrary to the clear intent of Congress and the court declines to accept defendant’s argument on this issue. For the foregoing reasons, the court concludes that service may be perfected in this action pursuant to amended Rule 4(c)(2)(C)(ii). Accordingly, plaintiff is hereby ORDERED within fifteen (15) days of receipt of this Order to amend his complaint to reflect the proper defendant, Raymond Construction, Inc., and to perfect service over defendant by again sending the Summons and Complaint, along with an acknowledgement of service to the defendant’s registered agent for service by first class mail. Based on the foregoing, it is further ORDERED that defendant’s motion to vacate the court’s Order of June 15,1983 is hereby DENIED. C. MOTION TO DISMISS BASED ON LACHES In defendant’s initial brief in support of its motions to dismiss, defendant raised the issue of laches and plaintiff’s lack of due diligence in perfecting service upon the defendant as a ground upon which the court should dismiss this action. The court declines to dismiss the action on this basis because where a cause of action is created by federal law, such as a Title VII action, under the Federal Rules of Civil Procedure—Rule 3—a cause of action commences, so as to toll the statute of limitations, upon the filing of a complaint, without further requirement that the plaintiff assure speedy service of process. Caldwell v. Martin Marietta Corp., 632 F.2d 1184 (5th Cir.1980). In defendant’s reply brief to its motion to dismiss, defendant also argues that plaintiff is guilty of laches by failing to perfect service of process upon the defendant within a reasonable time after the filing of the complaint. In support of this argument, the defendant directs the court’s attention to Fed.R.Civ.P. 4(j), as amended, which provides: If a service of the summons and complaint is not made upon the defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without" }, { "docid": "2978397", "title": "", "text": "U.S. at 151, 104 S.Ct. at 1725; (2) Daniel actually received the notice of right to sue letter, and the contents of that letter exceeded the statutory requirements. Artis affidavit at 1-2; Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 245-46 (5th Cir.1980); Page v. U.S. Industries, Inc., 556 F.2d 346, 350-51 (5th Cir.1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); Turner v. Texas Instruments, Inc., 556 F.2d 1349, 1351 (5th Cir.1977). See Baldwin County Welcome Center, 466 U.S. at 151, 104 S.Ct. at 1725; (3) nothing in the record indicates that Southwest affirmatively misled Daniel or that the court led Daniel to believe that he had done all that was required of him. Id. III. Conclusion For the forgoing reasons, Southwest’s motion to dismiss under Fed.R.Civ.P. 12(b)(6) is GRANTED. SO ORDERED. . The return of service form was left blank. There is nothing in the record indicating that service by the marshal was requested. Daniel has not responded in any form .to Southwest’s motions, and Southwest's counsel is understandably without knowledge as to the circumstances surrounding service of the complaint and summons. . Southwest responded to the summons and complaint with the Rule 12 motions at issue. . Southwest also challenges the propriety of service under Fed.R-Civ.P. 4(c)(2)(A) and (B). . Cf. Porter v. Beaumont Enterprise and Journal, 743 F.2d 269, 272 (5th Cir.1984). . The Fifth Circuit has squarely held that the simple filing of a complaint will toll the running of the 90 day statute of limitations. Caldwell v. Martin Marietta Corporation, 632 F.2d 1184, 1187-88 (5th Cir.1980). Although that holding does not conflict with the result reached here, see Shelley, above, 561 F.2d at 1210; Gonzales, 824 F.2d at 395-96, it is worthy of note that the rule enunciated in Caldwell may be in doubt in the Fifth Circuit and in the Supreme Court as well. See Walker v. Armco Steel Corporation, 446 U.S. 740, 751 and nn. 10, 11, 100 S.Ct. 1978, 1985 and nn. 10, 11, 64 L.Ed.2d 659 (1980) (“There is no indication that [Rule 3]" }, { "docid": "14676600", "title": "", "text": "Sheriff nor the County itself were sued. No effort was made to add either Sheriff Marmolejo or Hidalgo County as a defendant in the Bazan case until July 28, 1980, when Plaintiff requested leave to file a second amended complaint. Indeed, if the foregoing circumstances tend to prove anything, it would be that by August, 1980, Sheriff Marmolejo and therefore Hidalgo County, would have reasonably concluded that they would not likely be sued for the alleged misconduct of the deputies. Finally, Plaintiff argues that once Hidalgo County was deemed to be a “person” by the ruling in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), it should have realized that it would be sued in this ease. Again, the argument is a non-sequiter. Thus, assuming the County should have realized that it was subject to suit after Monell, the fact remains that this suit was originally filed in April, 1979, almost a year after Monell, and yet the County was not named as a party defendant. No effort was made to name the County as a party defendant until August, 1980, more than two years after Monell. Thus, the statute of limitations would have already expired, absent any relation-back. Since the Court has already concluded that relation-back does not apply in this particular case, the County’s limitation defense is valid. In summary, therefore, the Motion for Summary Judgment is DENIED as to Defendants Wilson and Strickland. The Motion will be granted as to Defendants Marmolejo and the County of Hidalgo, subject, however, to those Defendants immediately filing amended answers properly pleading the limitations defense. . In holding that Plaintiff must comply with the Texas statute requiring suit to be commenced and diligently prosecuted within the requisite time period, the Court is fully aware of the provisions of Rule 3, Fed.R.Civ.P., that a civil action is “commenced” in federal court simply by the filing of a complaint. The Court is also aware of decisions such as Caldwell v. Martin Marietta Corp., 632 F.2d 1184 (5th Cir. 1980), and cases cited therein, to the" }, { "docid": "3113980", "title": "", "text": "we now perceive that we were in error. This does not, however, dispose of the matter. We believe that the statute of limitations was tolled by the filing of the original complaint, and did not begin to run again until appellant opted out of the defendant class. Since Graves was subsequently served within the period provided in 49 U.S.C. § 16(3)(f), this Court was correct in the previous appeal in concluding that Graves’s jurisdictional defense was without merit. This suit was commenced by the filing of a class action complaint on June 15, 1970. In a related case, we held that the limitations period did not begin to run against any shippers until December 21, 1971. Container Corp. of America v. Admiral Merchants Motor Freight, Inc., 489 F.2d 825 (7th Cir. 1973). Graves received its first formal notice of this suit in August, 1973, eight months after the one-year limit would have run, barring any application of the tolling doctrine. Appellant contends that the statute was not tolled until it received formal notice of the suit. Those circuits that have considered the question whether notice is necessary to invoke the tolling doctrine have uniformly held that the filing of a complaint, in literal compliance with Rule 3, Fed.R.Civ.P., is sufficient to interrupt the running of a federal statute of limitations. Neither service of the complaint nor the summons on a defendant is necessary. In United States v. Wahl, 583 F.2d 285 (6th Cir. 1978), for example, the Court of Appeals for the Sixth Circuit held that the filing of a complaint within the limitations period tolled the statute even though the defendant was not served until three years after the statute of limitations had run. See also Windbrooke Development Corp. v. Environmental Enterprises, Inc. of Florida, 524 F.2d 461 (5th Cir. 1975); Isaacks v. Jeffers, 144 F.2d 26 (10th Cir.), cert. denied, 323 U.S. 781, 65 S.Ct. 270, 89 L.Ed. 624 (1944); and Reynolds v. Needle, 132 F.2d 161 (D.C.Cir.1942). In each of the cases cited above, the defendant was named in the complaint. In contrast to that situation, in" }, { "docid": "7287696", "title": "", "text": "toll the running of the statute of limitations because plaintiff did not diligently procure the service of summons prior to the expiration of the four year statutory period.” 144 F.2d at 27-28. We reject the similar argument of Martin Marietta. This court has already expressed a preference for the view that the filing of a complaint alone suffices to toll the running of a statute of limitations. Shelley v. Bayou Metals, 561 F.2d 1209 (5th Cir. 1977); Windbrooke Development Corp. v. Environmental Enterprises, Inc. of Florida, 524 F.2d 461 (5th Cir. 1977). We have held that the payment of a filing fee is unnecessary to commence an action. Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544 (5th Cir. 1978). Similar reasoning causes us to hold that an action commences simply upon the filing of a complaint. The only remaining issue is whether Caldwell’s action should be dismissed for failure to prosecute. Federal Rule of Civil Procedure 41(b) provides that “[f]or failure of the plaintiff to prosecute ... a defendant may move for dismissal of an action or any claim against him.” Martin Marietta made such a motion, but the trial judge, having previously dismissed Caldwell’s complaint as time-barred, had no occasion to rule upon it. Rule 41(b) requires a trial court to evaluate a plaintiff’s diligence in light of all the circumstances of a case. Link v. Wabash R. R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Our circuit permits dismissal for failure to prosecute only in cases of intentional misconduct. Boazman v. Economic Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976); Coon v. Charles W. Bliven & Co., 534 F.2d 44 (5th Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); 5 J. Moore Federal Practice ¶ 41.11[2] (2d ed. 1976). The record on appeal lacks the.information necessary for assessing Caldwell’s conduct in light of all the circumstances in this case. Remand on this issue is therefore appropriate. In summary, we affirm in part, holding that Caldwell’s § 1981 claim is time-barred and that his amended Title VII complaint" }, { "docid": "14676601", "title": "", "text": "effort was made to name the County as a party defendant until August, 1980, more than two years after Monell. Thus, the statute of limitations would have already expired, absent any relation-back. Since the Court has already concluded that relation-back does not apply in this particular case, the County’s limitation defense is valid. In summary, therefore, the Motion for Summary Judgment is DENIED as to Defendants Wilson and Strickland. The Motion will be granted as to Defendants Marmolejo and the County of Hidalgo, subject, however, to those Defendants immediately filing amended answers properly pleading the limitations defense. . In holding that Plaintiff must comply with the Texas statute requiring suit to be commenced and diligently prosecuted within the requisite time period, the Court is fully aware of the provisions of Rule 3, Fed.R.Civ.P., that a civil action is “commenced” in federal court simply by the filing of a complaint. The Court is also aware of decisions such as Caldwell v. Martin Marietta Corp., 632 F.2d 1184 (5th Cir. 1980), and cases cited therein, to the effect that in federal court, for federal causes of action such as a claim under Title VII, there is no requirement of diligent service of process and the filing of the complaint is enough to toll the statute of limitations. On the other hand, however, it is now clear that were the instant suit based on diversity jurisdiction, the Texas requirement of diligent prosecution would clearly apply. Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). Finally, and what distinguishes the instant case from Caldwell, is the holding that in a § 1983 suit, the federal courts are obligated to apply not only the applicable state statute of limitations but also any applicable state statute for tolling limitations. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Thus, the issue here does not involve whether to adopt the federal or state definition of when a lawsuit is “commenced”. Instead, the question is whether the Texas requirement that a suit be commenced and prosecuted" }, { "docid": "14017458", "title": "", "text": "cases will conform as nearly as possible to the procedure followed in other civil litigation. Recile v. Ward, 503 F.2d 1374 (5th Cir. 1974). The Federal Rules of Civil Procedure are similar to the Bankruptcy Rules. Fed.R.Civ.P. 3 provides that “A civil action is commenced by filing a complaint with the court.” Fed.R.Civ.P. 4(a) provides in pertinent part that “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it.” Under the civil rules, numerous cases have held that, for limitations purposes, a civil action is deemed to commence upon the filing of a complaint. Anderson v. Phoenix of Hartford, Ins. Co., 320 F.Supp. 399 (D.C.La.1973); Benn v. Linden Crane Co., 370 F.Supp. 1269 (D.C.Pa.1973); United States v. Malkin, 317 F.Supp. 612 (D.C.N.Y.1970), and this is the general rule. 2 Moore’s Federal Practice 13.07 [4-3-2] 1973 ed. It is especially true where there has been no lack of diligence in obtaining service of process. Newberg v. American Dryer Corp., 195 F.Supp. 345 (D.C.Pa.1961). In the instant case, the petitioning creditors were diligent. The delay was caused when the District Court Clerk’s Office supplied the wrong type summonses to the petitioning creditors, when the Clerk’s Office failed to supply true copies of the petition, and by a basic lack of coordination between the District Court Clerk’s Office and the Bankruptcy Court Clerk’s Office. Indeed, at the October hearing on this motion, the attorney for the petitioning creditors stated that it was a week or two before he discovered that the summons had not been issued. Clearly, the petition was filed within the four-month period, and compliance with sections 3b and 60a(l) of the Bankruptcy Act, together with Rule 101 of the Bankruptcy Rules, tolled the statute of limitations. Certainly the petitioning creditors have not been guilty of the sort of failure to prosecute or comply with the rules that would justify an involuntary dismissal pursuant to Fed.R.Civ.P. 41(b), as Windbrooke contends, and Windbrooke has not shown actual prejudice to it caused by" }, { "docid": "7287697", "title": "", "text": "of an action or any claim against him.” Martin Marietta made such a motion, but the trial judge, having previously dismissed Caldwell’s complaint as time-barred, had no occasion to rule upon it. Rule 41(b) requires a trial court to evaluate a plaintiff’s diligence in light of all the circumstances of a case. Link v. Wabash R. R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Our circuit permits dismissal for failure to prosecute only in cases of intentional misconduct. Boazman v. Economic Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976); Coon v. Charles W. Bliven & Co., 534 F.2d 44 (5th Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); 5 J. Moore Federal Practice ¶ 41.11[2] (2d ed. 1976). The record on appeal lacks the.information necessary for assessing Caldwell’s conduct in light of all the circumstances in this case. Remand on this issue is therefore appropriate. In summary, we affirm in part, holding that Caldwell’s § 1981 claim is time-barred and that his amended Title VII complaint relates back to the date of his original § 1981 complaint. We reverse in part, holding that the filing of a complaint is sufficient to commence a federal action. We remand to the trial court for consideration of the motion to dismiss for failure to prosecute. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED." }, { "docid": "16314221", "title": "", "text": "held that “delay in service of the summons and complaint may nullify the effect of filing the complaint.” See Application of the Royal Bank of Canada, 33 F.R.D. 296, 299-303 (S.D.N.Y.1963) (where plaintiff had not served process on defendant, in effect, no action had been commenced and plaintiff could not engage in discovery procedures). Gleason made no attempt to show that he was diligent in serving the defendants. He provided no explanation for the thirty-four month interval between filing the amended complaint and serving the defendants. In the instant case, the unexplained delay had the effect of negating the fact that a complaint was ever filed. See Application of the Royal Bank, 33 F.R.D. at 299-303. Because in effect no complaint was filed within the three year statute of limitations period, the dismissal as untimely of the claims relating to the Gleason I action was proper. Gleason’s argument that dismissal was erroneous because the defendants did not raise the defense of insufficiency of process in their answer is flawed. Prior to the enactment of Rule 4(j), failure to use due diligence in serving process was justification for the involuntary dismissal of actions for want of prosecution under Fed.R. Civ.P. 41(b). The district court could order dismissal on this ground sua sponte, without giving notice to the parties. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-32, 82 S.Ct. 1386, 1388-90, 8 L.Ed.2d 734 (1962); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.) (per curiam), cert. denied, 384 U.S. 1007, 86 S.Ct. 1924, 16 L.Ed.2d 1020 (1966); West v. Gilbert, 361 F.2d 314, 316 (2d Cir.) (per curiam), cert. denied, 385 U.S. 919, 87 S.Ct. 229, 17 L.Ed.2d 143 (1966); see also 9 C. Wright, A. Miller & F. Elliott, Federal Practice and Procedure § 2370, at 212 (1971 & Supp.1988). Thus, regardless of whether any of the defendants moved to dismiss, we hold that the district court’s sua sponte dismissal of the action was proper. Appellant’s contention that the appellees had constructive notice of the lawsuit is without merit. It is well settled that notice must be “reasonably" }, { "docid": "3113981", "title": "", "text": "suit. Those circuits that have considered the question whether notice is necessary to invoke the tolling doctrine have uniformly held that the filing of a complaint, in literal compliance with Rule 3, Fed.R.Civ.P., is sufficient to interrupt the running of a federal statute of limitations. Neither service of the complaint nor the summons on a defendant is necessary. In United States v. Wahl, 583 F.2d 285 (6th Cir. 1978), for example, the Court of Appeals for the Sixth Circuit held that the filing of a complaint within the limitations period tolled the statute even though the defendant was not served until three years after the statute of limitations had run. See also Windbrooke Development Corp. v. Environmental Enterprises, Inc. of Florida, 524 F.2d 461 (5th Cir. 1975); Isaacks v. Jeffers, 144 F.2d 26 (10th Cir.), cert. denied, 323 U.S. 781, 65 S.Ct. 270, 89 L.Ed. 624 (1944); and Reynolds v. Needle, 132 F.2d 161 (D.C.Cir.1942). In each of the cases cited above, the defendant was named in the complaint. In contrast to that situation, in Sassi v. Breier, 584 F.2d 234 (7th Cir. 1978), we held that an amendment to the pleadings after the limitations period had run, specifically naming a defendant designated merely as “John Doe” in the original complaint, would not relate back to the original complaint. We there reasoned that “to hold otherwise could have an unwarranted impact upon the salutary purposes of statutes of limitations.” Id. at 325. The rules set forth in these cases provide only a starting point for our analysis, for no circuit, to our knowledge, has specifically addressed the issue of tolling in the context of a class action suit in which there is a class of unnamed defendants. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), is the seminal case on the application of the tolling doctrine in class action suits. There, the Supreme Court held that a class action suit filed on behalf of a class of unnamed plaintiffs tolls the statute of limitations as to all potential class members. If" }, { "docid": "22083882", "title": "", "text": "court to review the record and enter a final judgment. A district court may dismiss an action for failure of a plaintiff to prosecute or to comply with any order of court. Fed.R. Civ.P. 41(b). The court possesses the inherent authority to dismiss the action sua sponte, without motion by a defendant. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962). The standard of review for a Rule 41(b) dismissal is whether the district court abused its discretion in dismissing the action. Link, 370 U.S. at 633, 82 S.Ct. at 1390; Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982). The dismissal of appellant’s action at this juncture does not constitute an abuse of discretion. Appellant’s cause of action accrued during his incarceration. Under Texas law, the statute of limitations does not run while the injured party is incarcerated, as confinement is considered a disability of the plaintiff. Tex.Rev.Civ. Stat.Ann. art. 5535 (Vernon 1968). See Williams v. Dallas County Commissioners, 689 F.2d 1212, 1216 (5th Cir.1982), cert. denied, 461 U.S. 935, 103 S.Ct. 2102, 77 L.Ed.2d 309 (1983). Although appellant has since been released on parole, there is no indication that the statute of limitations on his action has run. Further, if the period had indeed run, appellant would have been able to argue that the dismissal, although “without prejudice,” actually constituted abuse of discretion since he would have been prevented from filing the suit again. See Burden v. Yates, 644 F.2d 503, 505 (5th Cir.1981). Because the dismissal was without prejudice and the appellees concede no statute of limitation bars the refiling of appellant’s claim, appellant has not suffered prejudicial harm resulting from the dismissal. In such circumstances trial courts must be allowed leeway in the difficult task of keeping their dockets moving. Failure to attend a hearing is a critical default. AFFIRMED. . McCullough’s \"motion for reconsideration,” filed in the district court, does not reflect service on the defendants and therefore was not a timely Fed.R.Civ.P. 59(e) motion. If it had been it would have nullified his notice of" }, { "docid": "903888", "title": "", "text": "Cir., 1971, 437 F.2d 513, 518, cert. denied, 403 U.S. 904, 91 S.Ct. 2205, 29 L.Ed.2d 680 (1971). The district court granted the defendant’s motion to dismiss for improper service of process on July 21. After the district court granted the motion to dismiss, but before a judgment was rendered in conformity with the dismissal order, plaintiff filed a second suit on July 27, alleging the same facts and statutory bases for relief. Once again plaintiff incorrectly named the defendant, but proper and timely service of process was obtained. Plaintiff never sought to amend the first complaint, to obtain proper service of process, or to appeal the dismissal. The second complaint was dismissed for failure to file within the applicable prescriptive and limitations periods. It is from this dismissal that plaintiff now appeals. The gravamen of plaintiff’s appeal is that both the ninety-day period for filing the Title VII suit and the one-year period for filing the section 1981 suit were tolled by the initial complaint filed on April 28, 1976. Plaintiff contends that the district court erroneously held that the mere filing of a complaint does not toll the running of the limitations and prescriptive periods, and that reasonably timely and proper service is necessary in order to interrupt the statutory periods. A recent decision of this circuit indicated a preference for the view that the filing of a complaint tolls the running of the limitations period. See Windbrooke Development Corp. v. Environmental Enterprises, Inc. of Fla., 5 Cir., 1975, 524 F.2d 461, 463. The Windbrooke court declared that the “general rule” is that a civil action is deemed to commence upon the filing of a complaint, see Fed.R.Civ.P. 3 (“a civil action is commenced by filing a complaint with the court”), and that this was “especially true where there has been no lack of diligence in obtaining service of process,” 524 F.2d at 463. In Windbrooke the delay in service of process was entirely the fault of the district court Clerk’s Office. Thus, this circuit has not yet squarely decided whether the statute of limitations can be tolled" }, { "docid": "7287695", "title": "", "text": "of diligent service of process. This committee stated in its comments upon Rule 3 that “[ojther rules providing for dismissal for failure to prosecute suggest a method available to attack unreasonable delay in prosecuting an action after it has been commenced.” Original Committee Note of 1937 to Rule 3 reprinted in 2 J. Moore Federal Practice ¶ 3.01[2] (1976). See Fed.R.Civ.P. 41(b) (authorizing dismissal for failure to prosecute). In Isaacks, the Tenth Circuit likewise refused to place upon a federal complainant the burden of assuring timely service of process in order to toll a limitations period. The Isaacks Court noted that Rule 4 places responsibility for service of summons upon federal officials rather than upon a complainant. Rule 4 provides in part that “[u]pon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it.” Construing this language in conjunction with Rule 3, the Isaacks Court rejected the contention that “the filing of the complaint did not toll the running of the statute of limitations because plaintiff did not diligently procure the service of summons prior to the expiration of the four year statutory period.” 144 F.2d at 27-28. We reject the similar argument of Martin Marietta. This court has already expressed a preference for the view that the filing of a complaint alone suffices to toll the running of a statute of limitations. Shelley v. Bayou Metals, 561 F.2d 1209 (5th Cir. 1977); Windbrooke Development Corp. v. Environmental Enterprises, Inc. of Florida, 524 F.2d 461 (5th Cir. 1977). We have held that the payment of a filing fee is unnecessary to commence an action. Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544 (5th Cir. 1978). Similar reasoning causes us to hold that an action commences simply upon the filing of a complaint. The only remaining issue is whether Caldwell’s action should be dismissed for failure to prosecute. Federal Rule of Civil Procedure 41(b) provides that “[f]or failure of the plaintiff to prosecute ... a defendant may move for dismissal" }, { "docid": "1581813", "title": "", "text": "Corp. v. Burger Chef Systems, Inc., 554 F.2d 1165, 1167 n. 19 (D.C.Cir.1977); United States v. Wahl, 583 F.2d 285 (6th Cir.1978). Rule 3 simply states that a “civil action is commenced by filing a complaint with the court.” Read literally, therefore, the rule requires that the plaintiff do nothing more to commence an action in federal court than to file the complaint. Although some courts have also required the plaintiff to exercise due diligence in obtaining service of process in order to toll the statute of limitations, see 2 Moore’s Federal Practice, § 3.07[4.-3-2] at 3-117-18; 4 Wright & Miller, Federal Practice and Procedure: Civil, § 1056 at 178-81, the Advisory Committee for the Federal Rules of Civil Procedure deliberately chose not to require service of process within a specified period of time after filing of suit, suggesting instead the remedy provided by Rule 41(b) of a motion to dismiss for want of prosecution. See Messenger v. United States, 231 F.2d 328, 329 (2d Cir.1956); Advisory Committee notes to Rule 3. As a result, several courts have held that filing a suit in and of itself is sufficient to toll the statute of limitations. See, e.g., Caldwell v. Martin Marietta Corp., 632 F.2d 1184 (5th Cir.1980); United States v. Wahl, 583 F.2d 285; Moore Co. of Sikeston, Mo. v. Sid Richardson Carbon & Gas Co., 347 F.2d 921 (8th Cir.1965); Messenger v. United States, 231 F.2d 328; Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61 (D.C.1980) (en banc); McCrea v. General Motors Corp., 53 F.R.D. 384 (D.Mont.1971). Indeed, the facts of United States v. Wahl, 583 F.2d 285, are very similar to the facts of this case. In Wahl, the government filed suit charging breach of a government procurement contract in 1970, four years after the six-year statute of limitations had begun to run. The government was awarded a default judgment in 1970. In 1975 the judgment was vacated and declared void against an individual defendant because of failure properly to effect service on that defendant. The government filed an amended complaint in 1975 and ten days thereafter" }, { "docid": "22103983", "title": "", "text": "failure to prosecute, this Court on appeal treated the dismissal as an involuntary dismissal under Fed.R.Civ.P. 41(b)). Rule 41(b) allows the district court to dismiss an action upon the motion of a defendant, or upon its own motion, for failure to prosecute. Morris v. Ocean Sys tems, 730 F.2d 248, 251 (5th Cir.1984); Rogers v. Kroger Co., 669 F.2d 317, 319-20 (5th Cir.1982). This authority is based on the “courts’ power to manage and administer their own affairs to ensure the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). Berry argues that (1) he is time-barred from reasserting a Title VII claim against CIGNA, and (2) because he is time-barred from bringing another Title VII suit, we should treat the dismissal without prejudice as if it were a dismissal with prejudice. A civil action under Title VII must be brought within ninety days of receipt of a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f); Price v. Digital Equip. Corp., 846 F.2d 1026, 1027 (5th Cir.1988). If a Title VII complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period. See Digital Equip. Corp., 846 F.2d at 1027 (where plaintiffs Title VII suit had been dismissed for failure to prosecute, ninety-day limitations period had not been tolled by timely filing of Title VII suit, and second Title VII lawsuit was time-barred). Consequently, we conclude that Berry is time-barred from reasserting a Title VII claim against Cigna. We also agree that we should treat the dismissal of Berry’s case as a dismissal with prejudice. “Where further litigation of [a] claim will be time-barred, a dismissal without prejudice is no less severe a sanction than a dismissal with prejudice, and the same standard of review is used.” McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir.1981); see also Williams, 828 F.2d at 329; Boazman v. Economics Lab., Inc., 537 F.2d 210, 213 (5th Cir.1976). We review" }, { "docid": "903889", "title": "", "text": "district court erroneously held that the mere filing of a complaint does not toll the running of the limitations and prescriptive periods, and that reasonably timely and proper service is necessary in order to interrupt the statutory periods. A recent decision of this circuit indicated a preference for the view that the filing of a complaint tolls the running of the limitations period. See Windbrooke Development Corp. v. Environmental Enterprises, Inc. of Fla., 5 Cir., 1975, 524 F.2d 461, 463. The Windbrooke court declared that the “general rule” is that a civil action is deemed to commence upon the filing of a complaint, see Fed.R.Civ.P. 3 (“a civil action is commenced by filing a complaint with the court”), and that this was “especially true where there has been no lack of diligence in obtaining service of process,” 524 F.2d at 463. In Windbrooke the delay in service of process was entirely the fault of the district court Clerk’s Office. Thus, this circuit has not yet squarely decided whether the statute of limitations can be tolled if the failure of timely service of process is the fault of the plaintiff. Plaintiff’s failure correctly to name the defendant in the April 28, 1976 complaint and his subsequent failure to amend that complaint renders unnecessary the decision of whether reasonable diligence in obtaining service of process in addition to the filing of a complaint is required to toll the statute of limitations. To allow the interruption of the limitations and prescriptive periods with this unamended complaint would obviate the need for Fed.R.Civ.P. 15(c), which sets forth the limited circumstances under which an amendment to a complaint changing the name of a party will relate back to the date the original complaint was filed. The Notes of the Advisory Committee on Rule 15(c) state that the Rule applies to corrections of misnomers and misdescriptions of a defendant. See Montalvo v. Tower Life Building and Tower Life Insurance Co., 5 Cir., 1970, 426 F.2d 1135, 1146-47 (applying the amended 15(c) to a misnomer). But see Washington v. T.G.&Y. Stores Co., W.D.La., 1971, 324 F.Supp. 849," }, { "docid": "7287692", "title": "", "text": "Civil Procedure. See, e. g. Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958). “Accordingly, in determining when this action was filed for the purposes of Title VII and notification to the Defendant that it was being sued, the Court finds the appropriate date is October 4, 1978, which is well after the expiration of the 90 day period established in Title VII. Even though the Court construes the original Complaint as sufficient to support a Title VII claim, and even assuming the Amended Complaint alleging a Title VII claim relates back to the date of the original Complaint for purposes of this motion, under the facts of this case the Court finds that the Title VII jurisdictional requirement of compliance with the 90 day limitations period was not met. Accordingly, the Defendant’s Motion to Dismiss and for Summary Judgment will be granted as to all the Plaintiff’s claims.” [End of trial court opinion.] For the reasons stated by the trial court, we agree that Caldwell’s 1981 claim fails. We also agree that the amendment of the complaint to assert a claim under Title VII relates back under Federal Rule of Civil Procedure 15(c) to the date of the original complaint stating a claim under § 1981. We are left to determine whether an action is commenced under the Federal Rules of Civil Procedure at the time a complaint is filed or at a later time. This is a matter of first impression in this circuit. Martin Marietta argues that the mere filing of a complaint fails to commence an action and thereby toll a statute of limitations. The trial judge accepted this argument and held that an action commences upon the filing of a complaint only if a plaintiff then exercises “reasonable diligence in undertaking those actions which are necessary to allow a summons to be issued and placed in proper channels so that service within a reasonable time may be made upon the Defendant . . .. ” We disagree. Rule 3 of the Federal Rules of Civil Procedure simply states: “A civil action is commenced by filing" }, { "docid": "7287693", "title": "", "text": "of the complaint to assert a claim under Title VII relates back under Federal Rule of Civil Procedure 15(c) to the date of the original complaint stating a claim under § 1981. We are left to determine whether an action is commenced under the Federal Rules of Civil Procedure at the time a complaint is filed or at a later time. This is a matter of first impression in this circuit. Martin Marietta argues that the mere filing of a complaint fails to commence an action and thereby toll a statute of limitations. The trial judge accepted this argument and held that an action commences upon the filing of a complaint only if a plaintiff then exercises “reasonable diligence in undertaking those actions which are necessary to allow a summons to be issued and placed in proper channels so that service within a reasonable time may be made upon the Defendant . . .. ” We disagree. Rule 3 of the Federal Rules of Civil Procedure simply states: “A civil action is commenced by filing a complaint with the court.” Several circuits, literally interpreting Rule 3, have held that the filing of a complaint, without more, is sufficient to commence an action. Moore Co. v. Sid Richardson Carbon & Gas Co., 347 F.2d 921 (8th Cir.), cert. denied, 383 U.S. 925, 86 S.Ct. 927, 15 L.Ed.2d 845 (1965); Mohler v. Miller, 235 F.2d 153 (6th Cir. 1956); Isaacks v. Jeffers, 144 F.2d 26 (10th Cir.), cert. denied, 323 U.S. 781, 65 S.Ct. 270, 89 L.Ed. 624 (1944). In Moore, the Eighth Circuit persuasively discussed the practical and historical reasons for interpreting Rule 3 as requiring no more than the filing of a complaint to commence an action. The Moore Court noted that the rule “unmistakably states in plain, clear, well-understood, and unambiguous language that an action is commenced by filing the complaint. The rule sets forth no additional requirements or conditions.” 347 F.2d at 922. The Moore Court also recognized that the advisory committee that drafted the Federal Rules of Procedure specifically rejected suggestions that Rule 3 contain a requirement" } ]

[ { "docid": "18569128", "title": "", "text": "of setoff is not available to it.” We agree. Section 542(b) of the Bankruptcy Code provides that “an entity that owes a debt that is property of the estate and that is matured, payable on demand, or payable on order, shall pay such debt to, or on the order of, the trustee, except to the extent that such debt may be offset under section 553 of this title against a claim against the debtor.” 11 U.S.C. § 542(b) (emphasis added).. Accordingly, because the Claims Court judgment is a matured debt that the United States owes to Cascade, section 542(b) authorizes the Turnover Order unless the judgment “may be offset under section 553.” Section 553 provides that the Bankruptcy Code “does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case_” Id § 553(a). “[T]his provision is not an independent source of law governing setoff; it is generally understood as a legislative attempt to preserve the common-law right of setoff arising out of non-bankruptcy law.” United States v. Norton, 717 F.2d 767, 772 (3d Cir.1983). Accord, e.g., Cárnico Television Inc. v. National Broadcasting Co. (In re De Laurentiis Entertainment Group Inc.), 963 F.2d 1269, 1277 (9th Cir.) (“Section 553 does not by itself create a right of setoff. Instead, it merely allows setoffs in bankruptcy to the extent they are allowed under [nonbankruptcy] law”), cert. denied, — U.S. -, 113 S.Ct. 330, 121 L.Ed.2d 249 (1992); Camelback Hosp., Inc. v. Buckenmaier (In re Buckenmaier), 127 B.R. 233, 237 (9th Cir. BAP 1991) (“The Code does not create or expand the setoff right but instead merely preserves the common-law right under applicable non-bankruptcy law.”) (quotation omitted). Thus, assuming that the Claims Court judgment and the tax claims against Cascade are “mutual” debts within the meaning of the statute, section 553 would appear to preserve the government’s setoff rights under section 3728(a). Section 553, however, “is" } ]

[ { "docid": "20233824", "title": "", "text": "allowed secured claim, thus giving that creditor the highest priority under the Bankruptcy Code. § 506(a).”); In re Koch, 224 B.R. 572, 575 (Bankr.E.D.Va.1998). Creditors treated as holding secured claims under section 506 may have no duty to turn over collateral unless their secured claim is adequately protected. See 11 U.S.C. § 363(e); United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.O. 2309, 76 L.Ed.2d 515 (1983). A. In order to possess a right of setoff under section 553, there must be a mutuality of obligations between the debtor and the creditor asserting a right to setoff. As stated by the Third Circuit Court of Appeals: “To be mutual, the debts must be in the same right and between the same parties, standing in the same capacity.” In re Bevill, Bresler & Schulman Asset Management Corp., 896 F.2d 54, 59 (3d Cir. 1990) (quoting 4 Collier on Bankruptcy, ¶ 553.04[3], at 553-22 (15th ed.1979)); see, e.g., In re Davidovich, 901 F.2d 1533, 1537 (10th Cir.1990). Here, no party disputes that mutuality of any obligations owing between Mr. Szymanski and Wachovia exists. It has been acknowledged in a non-bankruptcy context that “[s]etoff will not be permitted when it would be inequitable or contrary to public policy to do so.” Federal Deposit Ins. Corp. v. Bank of America Nat. Trust and Sav. Ass’n, 701 F.2d 831, 836 (9th Cir.), cert. denied, 464 U.S. 935, 104 S.Ct. 343, 78 L.Ed.2d 310 (1983). This concept has been incorporated implicitly into the setoff provisions of section 553, “whose language is permissive, not mandatory.” U.S. on Behalf of I.R.S. v. Norton, 717 F.2d at 772; see, e.g., In re Hal, Inc., 122 F.3d 851, 854 (9th Cir.1997). Nonetheless, setoffs under section 553 “are generally favored, ... [although] not automatically permitted.” Melamed v. Lake County Nat. Bank, 727 F.2d 1399, 1404 (6th Cir.1984). As explained by one appellate court in the context of a receivership proceeding: The right to setoff exists where there are mutual debts between parties.... The district court has discretion whether to allow a setoff against a receiver, and this decision will" }, { "docid": "1510663", "title": "", "text": "under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In this instance, the parties’ local Rule 13(h) statements, affidavits and other pleadings indicate there are no material facts in dispute. Summary judgment is therefore appropriate. In general, the right to set off mutual prepetition debts owed to and by a creditor “has been confirmed in federal bankruptcy law since 1800.” Gribben v. United States (In re Gribben), 158 B.R. 920, 925 (S.D.N.Y. 1993) (citing Bohack Corp. v. Borden, Inc., 599 F.2d 1160, 1164-65 (2d Cir.1979)). This right is governed by section 553(a) of the Bankruptcy Code which provides in pertinent part: [T]his title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case ... against a claim of such creditor against the debtor that arose before the commencement of the case. 11 U.S.C. § 553(a). “Thus, section 553 does not create a right of setoff; the right exists, if at all, under applicable nonbankruptcy law.” In re Drexel Burnham Lambert Group Inc., 113 B.R. 830, 839 (Bankr. S.D.N.Y.1990). A creditor bears the burden of proving that it has the right of setoff in bankruptcy, see First Nat’l Bank of Louisville v. Hurricane Elkhom Coal Corp. II, 763 F.2d 188, 190 (6th Cir.1985), and must establish the following three criteria: 1. The debtor must owe a debt to the creditor which arose prepetition; 2. The debtor must have a claim against the creditor which arose prepetition; and 3. The debt and claim must be mutual. Braniff Airways, Inc. v. Exxon Co., USA, 814 F.2d 1030, 1034 (5th Cir.1987). Once these technical requirements of setoff are satisfied, “the bankruptcy judge must scrutinize the right of setoff in light of the Bankruptcy Code’s goals and objectives. These goals include ... equitable treatment of all creditors.” Illinois v. Lakeside Community Hosp., Inc. (In re Lakeside Community Hospital, Inc.), 151 B.R. 887, 890 (N.D.Ill.1993); accord In re Elcona Homes Corp., 863 F.2d 483, 484 (7th Cir.1988)." }, { "docid": "10251099", "title": "", "text": "a right to setoff under section 553 of Title 11 which provides, in pertinent part, as follows: Except as otherwise provided in this section and in sections 362 and 363 ... this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case ... against a claim of such creditor against the debtor that arose before the commencement of the case ... 11 U.S.C. § 553(a). Section 553 is not an independent source of law that authorizes setoffs. Rather, it recognizes and preserves setoff rights that exist under non-bankruptcy law. In re Haffner, 12 B.R. 371, 373 (Bankr.M.D.Tenn.1981). Therefore, a creditor seeking to setoff a debt under Title 11 must establish a claim and a setoff right cognizable under state or federal law. Section 553 does not expand non-bankruptcy rights and clearly provides that the automatic stay provisions of section 362 limit post-petition setoff rights, requiring creditors to obtain court permission before taking any action against property of the estate. In the Matter of Woloschak Farms, 74 B.R. 261, 264 (Bankr.N.D.Ohio 1987); United States v. Norton, 717 F.2d 767, 773 (3rd Cir.1983). The Farmers Home Administration can establish a non-bankruptcy right to setoff under regulations promulgated by the Secretary of Agriculture which permit the FmHA to ask the Commodity Credit Corporation for setoffs to recover a debt owed to FmHA. 7 C.F.R. § 13.1 et seq. The Administrator of ASCS or his designee must specifically authorize the setoff. § 13.4(f). The setoff right is limited, however, and may not be exercised “[w]here collection of a debt has been barred by a discharge in bankruptcy and the debtor has not expressed a desire to make payment.” § 13.5(3). Thus, absent protection of the automatic stay that filing a bankruptcy petition triggers, the FmHA could setoff by following the proper procedures under applicable federal regulations. Debtor submits that FmHA is precluded from setting off by 7 C.F.R. § 1408.4(b)(3). This argument is without merit. The regulations provide that section 13 exclusively sets forth the" }, { "docid": "21718877", "title": "", "text": "in 1978 U.S.Code Cong. & Ad.News at 5787, 5963, 6318-19. . Section 547 deals with preferential transfers. Although setoffs might otherwise be treated as preferential transfers, section 547 is not applicable because section 553(a) provides that: Except for as otherwise provided in this section and in section 362 and 363 of his title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case Our reading of this language is that, where a setoff right is being asserted, section 553, rather than section 547, governs the creditor’s rights. See F.D.I.C. v. Bank of America, 701 F.2d 831, 836 (9th Cir.1983). . In the “common law” era of pleading, a defendant could not assert a separate claim against a plaintiff in the same proceeding. \"Set-off” and \"recoupment” developed as exceptions to that rule. Setoff allowed a reduction of plaintiff’s claim by the amount of a liquidated claim of the plaintiff to the defendant; recoupment allowed a defendant to assert a claim arising out of the same transaction as the plaintiff’s claim. See J.G. Sutherland, The Law of Damages §§ 168-190 (recoupment), 198-204 (setoff of judgments) (4th ed. 1916); Loyd, The Development of Set-Off, 64 U.Pa.L.Rev. 541, 562-63 (1916). . Set-off was first recognized in American bankruptcy law in 1800, and was included in the first permanent federal bankruptcy law, passed in 1898. See 4 Moore, Oglebay & King, Collier on Bankruptcy (14th ed.) § 68.01 at 843-44. . The Bankruptcy Court's analysis of this issue is fundamentally flawed because it does not take account of this limitation on setoff. The court held that SSA had a “statutory right of setoff.” This right, however, is limited by section 553. Since section 506 only creates \"secured creditor” status for creditors with rights of setoff under section 553, and the right of SSA to set off the overpayment against post-petition benefits runs afoul of a" }, { "docid": "8859294", "title": "", "text": "clearly not interfere with the policy of the bankruptcy laws. Their inherent danger has been recognized recently by the First Circuit: The orderly reorganization of debtors is the paramount objective of Chapter 11. In attaining that objective, it is important —as, indeed, it is important in administering other chapters of the Bankruptcy Code—that creditors should be treated fairly. As Congress recognized, setoffs work against both the goal of orderly reorganization and the fairness principle because they preserve serendipitous advantages accruing to creditors who happen to hold mutual obligations, thus disfavoring other equally-deserving creditors and interrupting the debtor’s cash flow.... Consequently, the circle of creditors entitled to exercise setoff rights in bankruptcy is tightly circumscribed. In re Public Service Co. of New Hampshire, 884 F.2d 11, 13 (1st Cir.1989). The Code allows for setoff for a “mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case_” 11 U.S.C. § 553. The Code section is not an independent source of setoff rights. For that, the party claiming setoff must present some independent federal or state substantive law on which to prove its property right in this regard. Public Service, 884 F.2d at 14. Saugus General Hospital Inc. v. Saugus Bank and Trust Company, 698 F.2d 42 (1st Cir.1983). Neither side suggests that any independent federal substantive law creates a right to setoff here. If a right exists, therefore, it must derive from Puerto Rico law. Although the bankruptcy judge failed to analyze the question in terms of Puerto Rico law, we can draw enough from his analysis and conclusions of law to make our own application of Puerto Rico precedent to this case. The first issue is the timing of the debt owed Rúa by Colonial. “It is clear under [§ 553] that a creditor may not set off its pre-petition claims against a debt owed to the debtor which came into existence after the filing of the bankruptcy petition.” Cooper-Jarrett, Inc. v. Central Transport," }, { "docid": "1171865", "title": "", "text": "therefore on the Bank to establish a valid right of offset under Section 553 in order to defeat the Debtor’s cause of action for turnover. THE BANK’S RIGHT OF SETOFF The right of setoff is given special protection under the Bankruptcy Code in Section 553. Although the right of setoff is at odds with the fundamental bankruptcy principle of equality of distribution among creditors because it permits a creditor to obtain full satisfaction of a debt by extinguishing an equal amount of the creditor’s obligation to the debtor, setoff has long been permitted in bankruptcy courts. New York County National Bank v. Massey, 192 U.S. 138, 146, 24 S.Ct. 199, 201, 48 L.Ed. 380 (1904); In Re B & L Oil Co., 782 F.2d 155, 157 (10th Cir.1986); In Re Braniff Airways, Inc., 42 B.R. 443, 448 (Bankr.N.D.Tex.1984). In the absence of a recognition of the right to a setoff, a creditor might be forced pay in full the amount owed to the debtor, but be limited to no more than a pro rata recovery of its claim against the debtor. The process of imposing this loss on an otherwise innocent party has historically been thought to be improper. 2 NORTON BANKR.L. & PRAC. § 33.01. The creditor’s right of setoff has been codified in Section 553(a) of the Bankruptcy Code which provides in pertinent part: “Except as otherwise provided in this Section and in Sections 362 and 363 of this Title, this Title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the Debt- or that arose before the commencement of the case ...” Although Section 553 preserves the right of setoff, the nature, existence and enforceability of claims sought to be setoff are determined by applying the law of the state where the operative facts occurred, In Re Chestnut Co., 39 B.R. 519, 521 (Bankr.D.S.C.1984), and it is undisputed in the case at bar that all operative facts occurred in the state of Texas and that Texas law applies. Under Texas law, the relation between a bank and a" }, { "docid": "11716908", "title": "", "text": "whether there is mutuality between different governmental agencies permitting setoff under § 553 of the Code. There is a split of authority on whether there is mutuality between different governmental agencies for purposes of setoff under § 553 of the Code. See United States v. Arkison (In re Cascade Roads, Inc.), 34 F.3d 756, 763 n. 8 (9th Cir.1994) (quoting Shugrue v. Fischer (In re Ionosphere Clubs, Inc.), 164 B.R. 839, 842-43 (Bankr.S.D.N.Y.1994)). Because the Ninth Circuit recently declined to express an opinion on the matter, Arkison, 34 F.3d at 763 n. 8, this Court considers an issue of essentially first impression in this Circuit. For much the same reason as the courts in Shugrue v. Fischer (In re Ionosphere Clubs, Inc.), 164 B.R. 839, 842-43 (Bankr.S.D.N.Y.1994), and State of Illinois v. Lakeside Community Hosp., Inc. (In re Lakeside Community Hospital Inc.), 151 B.R. 887, 892 (N.D.Ill.1993), as set out below, this Court finds that mutuality does not exist as between different government agencies for purposes of setoff under § 553. Analysis begins with § 553 of the Code. Section 553 codifies the established “right to set off mutual prepetition debts owed to and owed by a creditor.” In re Drexel Burnham Lambert Group Inc., 113 B.R. 830, 839 (Bankr.S.D.N.Y.1990). Section 553(a) provides that “this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case ... against a claim of such creditor against the debtor that arose before the commencement of the case.” 11 U.S.C. § 553(a). “[S]eetion 553 does not create a right of setoff; the right exists, if at all, under applicable nonbankruptcy law.” Id., at 839. “By its terms, section 553 permits setoff only by ‘a creditor’ of a ‘mutual debt owing by such creditor to the debtor’ against ‘a claim of such creditor against the debtor.’ ” Shugrue, 164 B.R. at 842. Therefore, to establish a right to setoff, a creditor bears the burden to prove: (1) the debtor owes a debt to the creditor which arose" }, { "docid": "16634128", "title": "", "text": "on hand to be refunded to the Debtor. Consequently, not all elements under § 522(f)(1)(A) have been shown. As a result, the requested relief under § 522 is denied. B. 11 U.S.C. § 553 Section 553(a) of the Bankruptcy Code governs the exercise of setoffs between debtors and creditors and provides in relevant part: Except as otherwise provided in this section and in sections 362 and 363 of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such. creditor against the debtor that arose before the commencement of the case.... 11 U.S.C. § 553(a). In general, the right of setoff allows parties who owe mutual debts to each other to assert the amounts owed on these debts, subtract one from the other, and then pay only the balance. Mottaz v. St. Louis Post-Dispatch Pulitzer Publ’g Co. (In re Murphy), 203 B.R. 972, 975 (Bankr.S.D.Ill.1997) (citation omitted). The right of setoff is within the discretion of the Court, exercised under the principles of equity. United States v. Maxwell (In re Pyramid Indus., Inc.), 210 B.R. 445, 449 (N.D.Ill.1997). The Seventh Circuit, in speaking to § 553, opined that “the only sense we can make of the rule is that it recognizes that the creditor who owes his debtor money' is like a secured creditor; indeed, the mutual debts, to the extent equal, secure each party against the other’s default.” In re Elcona Homes Corp., 863 F.2d 483, 485 (7th Cir.1988). As the Supreme Court recently observed, setoff avoids the “absurdity of making A pay B when B owes A.” Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 18, 116 S.Ct. 286, 289, 133 L.Ed.2d 258 (1995) (citation omitted). Section 553(a) recognizes and preserves rights of setoff where four conditions exist: (1) the creditor holds a “claim” against the debtor that arose before the commencement of the case; (2) the creditor owes a “debt” to the debtor that also arose before" }, { "docid": "16541471", "title": "", "text": "interest in the Debtor’s checking account at the time of the petition, the next step is to determine what right of setoff, if any, is available to the bank. The treatment of setoff rights in bankruptcy is addressed in § 553 of the Bankruptcy Code. Section 553(a) states in part that: Except as otherwise provided in this section and in sections 362 and 363 of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case.... 11 U.S.C. § 553(a) (1994) (emphasis added). The remainder of § 553 provides for exceptions in regard to prepetition setoff and transferred right of setoff that are inapplicable here. See 11 U.S.C. § 553(b) (1994). Thus it is clear that the Bankruptcy Code does not create a right of setoff, but instead preserves a conditioned state law right. See In re Southern Indus. Banking Corp., 809 F.2d 329, 331 (6th Cir.1987); In re Whitaker, 173 B.R. 359, 360-61 (Bankr.S.D.Ohio 1994) (Caldwell, J.); In re Cooks, 157 B.R. 385, 387 (Bankr.S.D.Ohio 1993) (Clark, J.). In order to exercise a state law right of setoff in bankruptcy, the creditor must establish 1) A debt owed by the creditor to the debtor which arose prior to the commencement of the bankruptcy case; 2) A claim of the creditor against the debtor which arose prior to the commencement of the bankruptcy case; 3) The debt and claim are mutual obligations; and 4) A right to setoff the debts under nonbankruptcy law. In re Whitaker, 173 B.R. at 361. As to the final condition, under Ohio law a setoff “is that right which exists between two parties, each of whom under an independent contract owes a definite amount to the other, to setoff their respective debts by way of mutual deduction.” Witham v. South Side Building & Loan Ass’n of Lima, Ohio, 133 Ohio St. 560, 561, 15" }, { "docid": "22028844", "title": "", "text": "arising out of non-bankruptcy law.” United States v. Arkison (In re Cascade Roads, Inc.), 34 F.3d 756, 763 (9th Cir.1994) (quoting United States v. Norton, 717 F.2d 767, 772 (3d Cir.1983)). Under section 553(a), each debt or claim sought to be offset must have arisen prior to filing of the bankruptcy petition. In addition, “a claim may ... be set off without regard to whether it is contingent or unliquidated, as long as the claim qualifies as ‘mutual’ under applicable nonbankruptcy law....” Collier ¶ 553.01[4], at 553-6 (citation omitted). In order for countervailing debts to be “mutual,” they must be “in the same right and between the same parties, standing in the same capacity.” Collier ¶ 553.04[2], at 553-22 (citing England v. Industrial Comm. of Utah (In re Visiting Home Services, Inc.), 643 F.2d 1356, 1360 (9th Cir.1981)). The mutuality requirement stems from section 553(a)’s reference to “a mutual debt” owed by a creditor to the debtor against the creditor’s claim against the debtor, and it is strictly construed. Collier ¶ 553.04[1], at 553-20. The rationale for strict construction of the requirement has been explained as follows: [T]he mutuality requirement in bankruptcy should be strictly construed because set-offs run contrary to fundamental bankruptcy policies such as the equal treatment of creditors and the preservation of a reorganizing debtor’s assets: As Congress recognized, setoffs work against both the goal of orderly reorganization and the fairness principle because they preserve serendipitous advantages accruing to creditors who happen to hold mutual obligations, thus disfavoring other equally-deserving creditors and interrupting the debtor’s cash flow. Federal National Mortgage Assoc. v. County of Orange (In re County of Orange), 183 B.R. 609, 615 (Bankr.C.D.Cal.1995) (internal quotation marks and citation omitted). The right of setoff is permissive, not mandatory; its application “rests in the discretion of [the] court, which exercises such discretion under the general principles of [equity].” In re Cascade Roads, 34 F.3d at 763 (internal quotation marks and citation omitted); Collier ¶ 553.02, at 533-13 (citation omitted). “The burden of proving an enforceable right of setoff rests with, the party asserting the right.” In re" }, { "docid": "1106271", "title": "", "text": "of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case, ... We begin our analysis by noting that the right of setoff expressed in § 553 is restricted in its application by both legal and equitable principles. In re Lessig Construction, Inc., 67 B.R. 436, 441 (Bankr.E.D.Pa.1986). Furthermore, it is appropriate in the context of a bankruptcy to narrowly construe setoff so as not to run counter to the fundamental principle of bankruptcy law that creditors of the same class should share equally in any distribution from the debtor. Id. at 441. Denial of setoff in the case sub judice is in harmony with this principle. Cases construing § 553 and its precedes-sor, § 68(a) of the Bankruptcy Act (11 U.S.C. § 108), demonstrate that it is well established that, when the creditor’s claim for setoff is premised upon willful conversion of the Debtor’s property, setoff must be denied. Brunswick Corp. v. Clements, 424 F.2d 673 (6th Cir.1970), cert. denied, 400 U.S. 1010, 91 S.Ct. 569, 27 L.Ed.2d 623 (1971); Arkansas Fuel Oil Co. v. Leisk, 133 F.2d 79 (5th Cir.1943); In re Brendern Enterprises, Inc., 12 B.R. 458 (Bankr.E.D.Pa.1981); Annotation, Right to Set Off Tort and Claim Contract Claim Against One Another Under Section 68(a) of the Bankruptcy Act, 34 A.L.R.FED. 579, 589-95 (1977). This is because there is no valid right to setoff where conversion has occurred. There are two (2) closely connected theories which serve as the basis of the aforementioned established rule that a creditor has no valid right to setoff when conversion has occurred. The first theory is that, since the right to setoff, in bankruptcy court, is discretionary, the court must exercise its discretion and, where justice and equity dictate, deny setoff. Brunswick supra, 424 F.2d at 675. “A creditor who converts the property of a bankrupt, if his conversion liability" }, { "docid": "8339125", "title": "", "text": "in its conflict with the Sixth Circuit opinion in Springfield Nat’l Bank. B. Mutuality of Debts Section 553 of the Bankruptcy Code provides in relevant part: (a) Except as otherwise provided in this section ..., this title does not affect any right of a creditor to offset a mutual debt owing by such a creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debt- or that arose before the commencement of the case.... 11 U.S.C. § 553. Section 553 does not create any new right of setoff. Rather, it recognizes the existence of the doctrine under nonbankruptcy law and adds some additional requirements. See In re Bacigalupi, Inc., 60 B.R. 442 (9th Cir. BAP 1986); In re Marta Group, Inc., 47 B.R. 220 (Bankr.E.D.Pa.1985). The First Circuit, though not ruling directly on the present question, has set down the standard for determining mutuality of debts for the purposes of setoff pursuant to 11 U.S.C. § 553: “It is horn-book law that to be considered mutual, ‘debts must be in the same right and between the same parties, standing in the same capacity.’ ” WJM, Inc. v. Massachu setts Dept. of Pub. Welfare, 840 F.2d 996, 1011-12 (1st Cir.1988), quoting 4 L. King Collier on Bankruptcy 11 553.04 (15th ed. 1987). Accord, In re Johnson, 136 B.R. 306 (Bankr.M.D.Ga.1991); In re Evatt, 112 B.R. 405 (Bankr.W.D.Okla.1989), aff'd, 112 B.R. 417 (W.D.Okla.1990); In re Winnett, 97 B.R. 7 (Bankr.E.D.Cal.1989). The Court of Appeals for the First Circuit has also ruled that a creditor’s “setoff rights are governed by Massachusetts’ basic common-law setoff doctrines.” In re Saugus General Hospital, Inc., 698 F.2d 42, 44 (1st Cir.1983). This court, then, in deciding the present question, must determine whether (1)the debts are in the same right, (2) the debts are between the same parties, and (3) the parties are standing in the same capacity. Because the mutuality requirement is strictly construed against the claimant, see In re Communicall Central, Inc., 106 B.R. 540, 545 (Bankr.N.D.Ill.1989); In re NTG Industries, Inc., 103" }, { "docid": "22028845", "title": "", "text": "rationale for strict construction of the requirement has been explained as follows: [T]he mutuality requirement in bankruptcy should be strictly construed because set-offs run contrary to fundamental bankruptcy policies such as the equal treatment of creditors and the preservation of a reorganizing debtor’s assets: As Congress recognized, setoffs work against both the goal of orderly reorganization and the fairness principle because they preserve serendipitous advantages accruing to creditors who happen to hold mutual obligations, thus disfavoring other equally-deserving creditors and interrupting the debtor’s cash flow. Federal National Mortgage Assoc. v. County of Orange (In re County of Orange), 183 B.R. 609, 615 (Bankr.C.D.Cal.1995) (internal quotation marks and citation omitted). The right of setoff is permissive, not mandatory; its application “rests in the discretion of [the] court, which exercises such discretion under the general principles of [equity].” In re Cascade Roads, 34 F.3d at 763 (internal quotation marks and citation omitted); Collier ¶ 553.02, at 533-13 (citation omitted). “The burden of proving an enforceable right of setoff rests with, the party asserting the right.” In re County of Orange, 183 B.R. at 615. Finally, the right of setoff is subject to the automatic stay provisions of Chapter 11. See 11 U.S.C. § 362(a)(7) (staying “the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor”). In contrast to setoff, recoupment “is the setting up of a demand arising from the same transaction as the plaintiffs claim or cause of action, strictly for the purpose of abatement or reduction of such claim.” Collier ¶ 553.03, at 553-15 (emphasis in original). Under recoupment, a defendant is able to meet a plaintiffs claim “with a countervailing claim that arose ‘out of the same transaction.’ ” Ashland Petroleum Co. v. Appel (In re B & L Oil Co.), 782 F.2d 155, 157 (10th Cir.1986) (citations omitted). For this reason, recoupment has been analogized to both compulsory counterclaims and affirmative defenses. See, e.g., In re California Canners and Growers, 62 B.R. 18, 22 (9th Cir. BAP 1986) (Elliott, Bankruptcy J., concurring)" }, { "docid": "18692849", "title": "", "text": "provision based on the generally recognized right of mutual debtors which has been enacted as part of the Bankruptcy [laws], and when relied upon should be enforced by the court.” Cumberland Glass Mfg. Co. v. DeWitt, 237 U.S. 447, 455, 35 S.Ct. 636, 639, 59 L.Ed. 1042 (1915). Section 553(a) of the Bankruptcy Code provides that generally: this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the [bankruptcy] case ... against a claim of such creditor against the debtor that arose before the commencement of the case.... 11 U.S.C. § 553(a) (1979). Thus, section 553 does not create a right of setoff; the right exists, if at all, under applicable nonbankruptcy law. See, e.g., In re McLean Indus., Inc., 90 B.R. 614, 618 (Bankr.S.D.N.Y.1988). But the right is limited by section 553(a) to pre-petition claims of creditors which are not disallowed and are mutual with their pre-petition debts owing to the debtor. In their two supplemental briefs, the Banks assert that the setoff they seek lies under New York statutory and common law. They further assert that the requirements of section 553(a) are satisfied because, according to them, they, under the Credit and Pledge Agreements, (i) have pre-petition claims against Drexel as obli-gor for the amounts owed each of them and for the additional equity investment Drexel is obligated to make and (ii) owe Drexel, as Group Member, its ratable share of the collateral proceeds, which claims and debts are mutual. They also argue that, if they gave the Collateral Agent an instruction to withhold Drexel’s ratable share, Drexel would have a claim against them, apparently for breach of fiduciary duty, see Banks’ Supp.Br., p. 14 n. 8, which could be set off against the Banks’ claim. The assertion that the Banks owe Drexel its ratable share, however, fails to withstand analysis of these agreements. Further, modification of the automatic stay to create post-petition an alleged mutual debt upon which setoff may be predicated should not be permitted. A In urging" }, { "docid": "8347752", "title": "", "text": "operate to preserve NSB’s right to setoff. A NSB claims its right to setoff is grounded in section 553 of Title 11 which provides, in pertinent part, as follows: Except as otherwise provided in this section and in sections 362 and 363 .. .this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case ... against a claim of such creditor against the debtor that arose before the commencement of the case.... 11 U.S.C. § 553(a). Section 553 is, however, not an independent source of a right to setoff; rather, it recognizes and preserves, but does not define, the common law right of setoff under non-bankruptcy law. Elsinore Shore Assocs. v. First Fidelity Bank (In re Elsinore Hotel Shore Assocs.), 67 B.R. 926, 942 (Bankr.D.N.J.1986) (Section 553 does not affect common law right of set-off); Commerce Union Bank v. Haffner (In re Haffner), 12 B.R. 371, 373 (Bankr.M.D.Tenn.1981). A creditor seeking to setoff a debt under Title 11, therefore, must establish a claim and a right to setoff by applying the law of the state where the operative facts occurred, In re Chestnut Co., 39 B.R. 519, 521 (Bankr.D.S.C.1984); here they occurred in New Jersey. Section 553, moreover, does not expand non-bankruptcy rights and clearly provides that the automatic stay provisions of section 362 limit post-petition setoff rights, requiring creditors to obtain court permission before taking any action against the property of the estate. In the Matter of Hazelton, 85 B.R. 400, 403 (Bankr.E.D.Mich.1988); In the Matter of Woloschak Farms, 74 B.R. 261, 264 (Bankr.N.D.Ohio 1987); see also United States v. Norton, 717 F.2d 767, 772 (3d Cir.1983) (Section 553 is permissive not mandatory). The burden of proof, moreover, squarely rests with NSB in demonstrating its entitlement to setoff in light of the facts of this case. Pester Refining Co. v. Mapco Gas Prods., Inc., 845 F.2d 1476, 1486 (8th Cir.1988) (Burden on creditors to establish valid rights of setoff). B While NSB is undoubtedly correct in arguing that setoff does" }, { "docid": "18625063", "title": "", "text": "§ 553 of the Bankruptcy Code. The offset claim is made in Paragraph 9 of affirmative defenses contained on page 14 of the defendants’ answer to the amended complaint. However, Prudential-Bache has not formally requested relief from the automatic stay imposed against setoff claims by Code Section 362(a)(7). The defense of setoff is the predominant and overriding issue under Count I since § 542(b) plainly states that to the extent allowed a setoff will prevail over a turnover. Section 553(a) provides that with certain exceptions the filing of a bankruptcy petition does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case .under this title against a claim of such creditor against the debtor that arose before the commencement of the case. 11 U.S.C. § 553(a) (1982 & Supp. V 1988). In Section 553, the Bankruptcy Code does not create a substantive right but merely preserves in limited form the common law right of offset or setoff. In the simplest form of setoff, parties each having an unrelated and prepetition indebtedness to the other may offset their respective debts so that only a net difference, if any, remains owing. Many reported decisions have considered setoff under Section 553 and its predecessor, Section 68(a) of the Bankruptcy Act; fairly specific principles have been established to apply to individual cases. Setoff is an equitable remedy which although generally favored is not automatic or self-executing but which must be timely asserted by the creditor. Cumberland Glass Mfg. Co. v. DeWitt, 237 U.S. 447, 35 S.Ct. 636, 59 L.Ed. 1042 (1915); Melamed v. Lake County Nat’l Bank, 727 F.2d 1399, 1404 (6th Cir.1984); New Jersey Nat’l Bank v. Gutterman (In re Applied Logic Corp.), 576 F.2d 952, 957 (2d Cir.1978). A creditor claiming setoff must show that the prepetition obligations be tween the creditor and the debtor are mutual, meaning simply that the debts are between the same parties, standing in the same capacities. Tradex, Inc. v. U.S. (In re IML Freight, Inc.), 65 B.R. 788, 793" }, { "docid": "8347753", "title": "", "text": "Title 11, therefore, must establish a claim and a right to setoff by applying the law of the state where the operative facts occurred, In re Chestnut Co., 39 B.R. 519, 521 (Bankr.D.S.C.1984); here they occurred in New Jersey. Section 553, moreover, does not expand non-bankruptcy rights and clearly provides that the automatic stay provisions of section 362 limit post-petition setoff rights, requiring creditors to obtain court permission before taking any action against the property of the estate. In the Matter of Hazelton, 85 B.R. 400, 403 (Bankr.E.D.Mich.1988); In the Matter of Woloschak Farms, 74 B.R. 261, 264 (Bankr.N.D.Ohio 1987); see also United States v. Norton, 717 F.2d 767, 772 (3d Cir.1983) (Section 553 is permissive not mandatory). The burden of proof, moreover, squarely rests with NSB in demonstrating its entitlement to setoff in light of the facts of this case. Pester Refining Co. v. Mapco Gas Prods., Inc., 845 F.2d 1476, 1486 (8th Cir.1988) (Burden on creditors to establish valid rights of setoff). B While NSB is undoubtedly correct in arguing that setoff does not depend on the parties having contractually agreed to the right, it does not follow that such a right survives when its exercise is inconsistent with an express agreement between the parties. It is well-settled in New Jersey and elsewhere that setoff may be limited or precluded by agreement or mode of dealing. See Pepsi Cola Bottling Co. v. First Nat’l Bank of Columbus, 248 Ga. 114, 281 S.E.2d 579 (1981). Hudson United Bank v. House of Supreme, Inc., 149 N.J.Super. 153, 157, 373 A.2d 438, 440 (N.J.Super.Ct.Ch.Div.1977) (Bank's right to setoff is controlled when there is an agreement showing setoff was not intended by the parties, or where the circumstances or the particular modes of dealing are inconsistent with its existence); Sherberg v. First Nat’l Bank of Englewood, 122 Colo. 407, 222 P.2d 782 (en banc) (1950) (setoff may be controlled by agreement or course of performance); Forastiere v. Springfield Inst. for Sav., 303 Mass. 101, 103, 20 N.E.2d 950, 952 (1939) (“[T]he right of a bank to set-off ... ‘may be changed or" }, { "docid": "10278650", "title": "", "text": "pursue her cross-complaint in the San Francisco Municipal Court. These motions were granted on October 22, 1986 and each Debtor filed a notice of appeal. Ill ISSUE PRESENTED The issue presented is whether a creditor may present, by way of setoff, a claim against debtors who have received a discharge and are pursuing a cause of action against the creditor arising out of the same circumstances, which the debtors have claimed as exempt property in their bankruptcy cases. IV DISCUSSION A. Setoff Rights Under the Code Historically, setoff has been permitted in courts of equity Federal Deposit Ins. Corp. v. Bank of America, 701 F.2d 831, 836 (9th Cir.1983). Under the Bankruptcy Act, the right of setoff was generally favored, although not automatically permitted. See Melamed v. Lake County Nat. Bank, 727 F.2d 1399, 1404 (6th Cir.1984). In general, setoffs are allowed in bankruptcy to the extent that they are based upon mutual obligations existing between the debtor and a creditor, based on a concept of fairness, in order to prevent injustice. See In re Handy, 41 B.R. 172, 174 (E.Va.1984); In re Republic Financial Corp., 47 B.R. 766, 768 (N.Okla.1985). The approach of the Code is reflected in Section 553 which generally allows setoff. However, Section 553 is not intended to enlarge the doctrine or to permit a setoff when the general principles of legal or equitable setoff did not previously authorize it. See In re Duncan, 10 B.R. 13, 16 (E.Tenn.1980); 4 Collier on Bankruptcy 11553.02 at 553-9 (15th ed. 1987). It does not create any new right of setoff, but merely preserves the common-law right under applicable nonbankruptcy law. In re Haffner, 12 B.R. 371, 373 (M.Tenn.1981). Under the Code, the allowance of setoff is not automatic but is instead permissible at the discretion of the bankruptcy court, applying the general principles of equity. See In re Davies, 27 B.R. 898, 901 (E.N.Y.1983); 4 Collier, supra, ¶! 553.02 at 553-11. Setoff should not be allowed when it would be inequitable or contrary to public policy to do so. Federal Deposit Ins. Corp. v. Bank of America, supra," }, { "docid": "11716909", "title": "", "text": "553 of the Code. Section 553 codifies the established “right to set off mutual prepetition debts owed to and owed by a creditor.” In re Drexel Burnham Lambert Group Inc., 113 B.R. 830, 839 (Bankr.S.D.N.Y.1990). Section 553(a) provides that “this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case ... against a claim of such creditor against the debtor that arose before the commencement of the case.” 11 U.S.C. § 553(a). “[S]eetion 553 does not create a right of setoff; the right exists, if at all, under applicable nonbankruptcy law.” Id., at 839. “By its terms, section 553 permits setoff only by ‘a creditor’ of a ‘mutual debt owing by such creditor to the debtor’ against ‘a claim of such creditor against the debtor.’ ” Shugrue, 164 B.R. at 842. Therefore, to establish a right to setoff, a creditor bears the burden to prove: (1) the debtor owes a debt to the creditor which arose prepetition; (2)the debtor has a claim against the creditor which arose prepetition; and (3) the debt and claim are mutual. Braniff Airways, Inc. v. Exxon Co., USA 814 F.2d 1030, 1034 (5th Cir.1987). See First Nat’l Bank of Louisville v. Hurricane Elkhom Coal Corp. II, 763 F.2d 188, 190 (6th Cir.1985). Although the requirements that the debtor owe a debt to the creditor which arose prepetition and have a claim against the creditor which arose prepetition are of no less importance, only the requirement of mutuality is at issue on the instant motion. For purposes of setoff, mutuality contemplates that debts and credits be “in the same right and between the same parties, standing in the same capacity and same kind or quality.” Boston and Maine Corp. v. Chicago Pac. Corp., 785 F.2d 562, 556 (8th Cir.1986); see Lakeside at 4; 4 Collier on Bankruptcy § 553.04(2) at 553-22 (15th ed. 1991). To give effect to each word of § 553, see Crandon v. United States, 494 U.S. 152, 171, 110 S.Ct. 997, 1008, 108" }, { "docid": "20233825", "title": "", "text": "obligations owing between Mr. Szymanski and Wachovia exists. It has been acknowledged in a non-bankruptcy context that “[s]etoff will not be permitted when it would be inequitable or contrary to public policy to do so.” Federal Deposit Ins. Corp. v. Bank of America Nat. Trust and Sav. Ass’n, 701 F.2d 831, 836 (9th Cir.), cert. denied, 464 U.S. 935, 104 S.Ct. 343, 78 L.Ed.2d 310 (1983). This concept has been incorporated implicitly into the setoff provisions of section 553, “whose language is permissive, not mandatory.” U.S. on Behalf of I.R.S. v. Norton, 717 F.2d at 772; see, e.g., In re Hal, Inc., 122 F.3d 851, 854 (9th Cir.1997). Nonetheless, setoffs under section 553 “are generally favored, ... [although] not automatically permitted.” Melamed v. Lake County Nat. Bank, 727 F.2d 1399, 1404 (6th Cir.1984). As explained by one appellate court in the context of a receivership proceeding: The right to setoff exists where there are mutual debts between parties.... The district court has discretion whether to allow a setoff against a receiver, and this decision will be overturned for an abuse of discretion.... This discretion has, of course, limits and is governed by equity jurisprudence.... The district court must weigh the equities to determine whether to allow set-off. ... Recognizing a strong federal policy towards allowing setoff, the Second Circuit is reluctant to disturb this policy unless compelling circumstances require it. A decision disallowing a setoff must not be made cavalierly.... Likewise, other courts have recognized that there is practically a presumption in favor of allowing setoff.... The burden is on the party moving to deny setoff to prove that setoff should be denied. S.E.C. v. Elliott, 953 F.2d 1560, 1572 (11th Cir.1992) (citations omitted), rev’d in part on other grds., 998 F.2d 922 (11th Cir.1993). Generally, courts have disallowed an otherwise valid right to setoff in “compelling circumstances,” In re Whimsy, Inc., 221 B.R. 69, 74 (S.D.N.Y.1998), where . the creditor has committed inequitable, illegal or fraudulent acts, or the application of setoff would violate public policy. See, e.g., In re Cascade Roads, Inc., 34 F.3d 756, 766 (9th Cir.1994)" } ]

[ { "docid": "6496024", "title": "", "text": "Sibert or rejected his medical conclusion without explaining his reasons for doing so, the matter must be remanded. Kent v. Schweiker, supra, 710 F.2d at 115 n. 5; Cotter v. Harris, 642 F.2d 700, 706-707 (3d Cir.1981). The ALJ also rejected an opinion to the same effect by Dr. Kaufman. This runs contrary to the precept that the opinion of Dr. Kaufman, the treating physician, is entitled to substantial weight. Cotter v. Harris, 642 F.2d at 704. Accordingly, there is an insufficient evidentiary basis for the finding that mental impairment was insignificant, and thus there may not be substantial evidence for a finding of non-disability. Moreover, neither the district court nor the ALJ had the benefit of the Supreme Court’s decision in Heckler, etc. v. Campbell, - U.S. -, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983), when making their decisions in this case. In Heckler, the Court used this language, inter alia, at-, 103 S.Ct. at 1957: [I]n determining whether a claimant can perform less strenuous work, the Secretary must make two determinations. She must assess each claimant’s individual abilities and then determine whether jobs exist that a person having the claimant’s qualifications could perform. The first inquiry involves a determination of historic facts, and the regulations properly require the Secretary to make these findings on the basis of evidence adduced at a hearing. We note that the regulations afford claimants ample opportunity both to present evidence relating to their own abilities and to offer evidence that the guidelines do not apply to them. Finally, in evaluating Wallace’s residual functional capacity, the ALJ apparently relied solely on the single disability grids. He may have failed to consider the degree of psychological impairment in combination with the physical impairment. 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 v. Schweiker, 682 F.2d 456 (3d Cir.1982). Even the vocational expert failed to consider the combined effect of physical and mental impairment in concluding that Wallace could perform specific sedentary jobs. Tr. at 97-98. The assumptions" } ]

[ { "docid": "733641", "title": "", "text": "this circuit. By implementing her policy of no-nacquiesence, whether it be by formal ruling or otherwise, the Secretary impairs the right of each individual to a proper consideration of his subjective complaints, including pain. For these reasons, this court preliminarily concludes that the Secretary has applied an erroneous pain standard on a system-wide basis, violating the Social Security Act, the due process clause of the Fifth Amendment and the constitutional doctrine of the separation of powers. Plaintiffs have more than sustained their burden of showing a likelihood of success on the merits on this issue. The Medical Improvement Standard Plaintiffs further argue that the Secretary has applied an erroneous standard when terminating benefits for individuals who had once been declared by the Secretary to be disabled. Plaintiffs claim that the Secretary is required under the Social Security Act to employ a “medical improvement standard”, which would require the Secretary to show that an individual’s medical condition has materially improved, or that there was a clear error in the initial decision, before terminating benefits. The Secretary presently adheres to a “current disability” standard, which allows the Secretary to merely look at the present evidence of disability and make a new determination of whether or not an individual’s disability has ceased. The Secretary’s “current disability” standard has been overwhelmingly rejected by the courts. See, e.g., Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982); Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983); Kuzmin v. Schweiker, 714 F.2d 1233 (3rd Cir.1983); Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982); Weber v. Harris, 640 F.2d 176 (8th Cir.1981); Graham v. Heckler, 573 F.Supp. 1573 (W.Va.1983); Hyatt v. Heckler, 579 F.Supp. 985 (N.C.1984); Doe v. Heckler, 576 F.Supp. 463 (Md.1983). There is no doubt that under the Social Security Act, the claimant “bears a continuing burden of showing ... that he has a physical or mental impairment,” and that “[i]n order to remain eligible for benefits [he] must demonstrate that he is [disabled].” Mathews v. Eldridge, 424 U.S. 319, 336 and 343, 96 S.Ct. 893, 903 and 907, 47 L.Ed.2d 18 (1976). This rule does not" }, { "docid": "22409792", "title": "", "text": "four either.” Dixon v. Heckler, 589 F.Supp. 1494, 1508 (S.D.N.Y.1984). It seems simply a matter of common sense that various physical, mental, and psychological defects, each non-severe in and of itself, might in combination, in some cases, make it impossible for a claimant to work. The Social Security Act has long recognized this, and until 1980, so did the Secretary. The order of the district court invalidating the Secretary’s policy prior to December 1,1984 of not considering the combined effects of non-severe impairments is affirmed. Accord Johnson v. Heckler, 769 F.2d at 1213; Bowen v. Heckler, 748 F.2d 629, 634-35 (11th Cir.1984); Felshina v. Schweiker, 707 F.2d 71, 73 (2d Cir.1983); Burman v. Schweiker, 682 F.2d 456, 458 (3d Cir.1982). Affirmed in part, vacated in part, and remanded for further proceedings not inconsistent herewith. . Title 42 U.S.C. §§ 401 et seq. (1982 and Supp. 1984) and the regulations codified at 20 C.F.R. §§ 404.1 et seq. (1986) pertain to the OASDI program under Title II of the Social Security Act. Title 42 U.S.C. §§ 1381 et seq. (1982 and Supp. 1984) and the regulations codified at 20 C.F.R. §§ 416.101 ef seq. (1986) pertain to the SSI program under Title X,VI of the Act. For all purposes relevant to the present opinion — viz., the definition of disability, the sequential evaluation procedure generally (see 20 C.F.R. § 404.-1520; 20 C.F.R. § 416.920), and the severity step and combination requirement in particular (see 20 C.F.R. §§ 404.1520(c), 404.1521-.1523; 20 C.F.R. §§ 416.920(c), 416.921-.923) — the statutory and regulatory schemes for the two programs are identical. For simplicity, we shall refer in this opinion to the OASDI statute and regulations only. . As certified by the district court, the class is defined as follows: All persons residing in Massachusetts who have filed or will file applications for disability benefits under Title II or Title XVI of the Social Security Act, and whose benefits have been or will be denied on the grounds that they do not have a severe impairment, pursuant to the policies set forth in 20 C.F.R. §§ 404.1520(c)," }, { "docid": "6278387", "title": "", "text": "777, 779 (8th Cir. 1982); McCoy v. Schweiker, 683 F.2d 1138, 1146-1147 (8th Cir.1982) (en banc); Camp v. Schweiker, 643 F.2d 1325, 1332 (8th Cir.1981). The Secretary has not appealed from our decision on this point in any of the cited cases or in any other cases in which we have so held. Thus, this view is the law of the Circuit and must be followed in all cases in this Circuit. Administrative law judges must recognize and apply this law in their decisions. Hillhouse v. Harris, 715 F.2d 428, 430 (8th Cir.1983). In Smith v. Schweiker, 728 F.2d 1158, 1163 (8th Cir.1984), Judge Bowman wrote: Because Smith established the inability to return to her former job as a meat packer, the ALJ should have shifted the burden of proof to the Secretary to come forward with evidence that Smith has the requisite residual functional capacity and vocational qualification to do other jobs which exist in the national economy. See, e.g., Baugus v. Secretary of HHS, 717 F.2d 443 (8th Cir. 1983); O’Leary v. Schweiker, 710 F.2d 1334 (8th Cir.1983). The requirement that the shift in the burden of proof be acknowledged by the ALJ was noted again in Marshall v. Heckler, 731 F.2d 555, 556 (8th Cir.1984). In Nunn v. Heckler, 732 F.2d 645, 649 (8th Cir.1984), the Court cited O’Leary, 710 F.2d at 1337, stating: “When a claimant has demonstrated an inability to return to her former work, the burden shifts to the Secretary to establish the presence of other jobs in the economy that a claimant can perform.” (Emphasis added). In Ledoux v. Schweiker, 732 F.2d 1385, 1388 (8th Cir.1984) the Court, having noted the Secretary had found Ledoux’s impairments were sufficiently severe to preclude past relevant work, wrote: “The burden then shifted to the Secretary to prove Ledoux had the requisite residual functional capacity and vocational qualifications to do other jobs which exist in the national economy.” In Parsons v. Heckler, 739 F.2d 1334, 1339-1340 (8th Cir.1984), the Court stated that after finding Parsons incapable of returning to his past relevant work, “the ALJ should have" }, { "docid": "23434764", "title": "", "text": "[the claimant] from doing substantial gainful activity.” 20 C.F.R. §§ 404.1522, 416.922. The courts have strictly construed these regulations in the claimant’s favor. “Since the Secretary must evaluate the evidence in relation to the particular individual seeking benefits, where there are several illnesses suffered simultaneously by the claimant, the combined effect of the impairment must be considered before the Secretary denies the payment of disability benefits.” Bittel v. Richardson, 441 F.2d 1193, 1195 (3rd Cir. 1971) (citing Dillon v. Celebrezze, 345 F.2d 753, 755-57 (5th Cir.1965)) (emphasis added). See also Wiggins v. Schweiker, 679 F.2d 1387, 1392 (11th Cir.1982); Brenem v. Harris, 621 F.2d 688, 690 (5th Cir.1980); Champion v. Califano, 440 F.Supp. 1014, 1018 (D.D.C.1977) (“combined effects must be considered for the Act seeks to administer relief to the whole man and not simply to serve as a vehicle for the separate clinical analysis of individual ailments.”) (emphasis added). Accord Simms v. Schweiker, 552 F.Supp. 415, 418 (E.D.Pa.1982). Finally, considerations of fairness and efficiency may enter into a decision whether to remand a case to the Secretary in the face of new medical evidence. Thus, in Ferguson v. Schweiker, 641 F.2d 243 (5th Cir.1981), this court stated: “We ... find that considerations of fairness and efficiency, together with the rule that impairments must be considered in toto, require the Secretary to consider all the evidence — including evidence of events occurring after the initial administrative hearing — in deciding the case on remand.” Id. at 250 n. 9 (emphasis added). With these principles in mind, we now turn to the facts before us. Since there can be little dispute that the evidence Dorsey sought to present was both new and excusably delayed (fulfilling the first and third conditions of the new standard, we consider these elements first. We begin by noting that the ALJ did not explicitly find that Dorsey was mentally sound, but that the scanty evidence in the record failed to substantiate her contention that she was mentally unsound and therefore disabled. . On July 9, 1980, the time of the ALJ’s decision, one would have been" }, { "docid": "22409774", "title": "", "text": "a final decision from the Secretary prior to December 1, 1984. McDonald v. Heckler, 629 F.Supp. 1138, 1139-40 (D.Mass.1986). We shall consider the Step 2 regulation and the combination requirement in turn. II. THE SEVERITY REGULATION The Step 2 “severity” test has been a controversial aspect of the sequential evaluation process promulgated in 1978. The Secretary describes it as follows: (c) You must have a severe impairment. If you do not have any impairments) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work ex-perience____[ ] 20 C.F.R. § 404.1520(c) (1986). Critics contend that the application of this regulation has improperly and unfairly increased the number of claimants who are denied benefits based entirely on the purported medical non-severity of their impairment, without any consideration of the effect of the impairment on their ability to perform gainful activity. To date, ten courts of appeals other than our own have addressed the validity of the Step 2 regulation. Five have held the regulation invalid on its face, on the ground that the Social Security Act does not permit a finding of non-disability based on medical factors alone, without consideration of vocational factors. Baeder v. Heckler, 768 F.2d 547 (3d Cir.1985); Johnson v. Heckler, 769 F.2d 1202, reh’g denied by an equally divided court, 776 F.2d 166 (7th Cir.1985); Brown v. Heckler, 786 F.2d 870 (8th Cir.1986); Yuckert v. Heckler, 774 F.2d 1365 (9th Cir.1985), cert. granted, — U.S. —, 106 S.Ct. 1967, 90 L.Ed.2d 652 (1986); Hansen v. Heckler, 783 F.2d 170 (10th Cir.1986). The five remaining courts have upheld the regulation, but only if applied as a de minimis policy designed to screen out totally frivolous claims. Chico v. Schweiker, 710 F.2d 947, 954-55 n. 10 (2d Cir.1983); Evans v. Heckler, 734 F.2d 1012 (4th Cir. 1984); Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985); Farris v. Secretary of Health and Human Services, 773 F.2d 85 (6th Cir.1985); Brady v. Heckler, 724" }, { "docid": "22286369", "title": "", "text": "United States v. American Trucking Ass’n, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). For decades, the Act has decreed that, in applying the basic definition of disability, the Secretary shall determine a claimant to be disabled “if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot ... engage in any other kind of substantial gainful work.” 42 U.S.C. §§ 423(d)(2)(A) & 1382c(a)(3)(B) (emphasis added). The Act further defines a physical or mental impairment as one that “results from ... abnormalities ... demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3) & 1382c(a)(3)(C) (emphasis added). The Act does not use the singular “physical or mental impairment” or “abnormality”; rather Congress, through the Act, included the possibility of multiple “impairments” constituting a disability. Moreover, when the amendments to the statutory definition of disability were passed in 1968, the Secretary agreed that the Act required her to consider the combined effects of the non-severe impairments in determining whether a claimant was disabled. See 33 Fed.Reg. 11749, 11750 (1968), codified at 20 C.F.R. § 404.-1501(a)(1) (1969) (defining disability as “inability to engage in any substantial gainful activity by reason of ... impairment or impairments”) (emphasis added). The “contemporaneous administrative construction of [an] Act is persuasive evidence of the original understanding.” United States v. Sheffeld Board of Commissioners, 435 U.S. 110, 131, 98 S.Ct. 965, 979, 55 L.Ed.2d 148 (1978). Other federal courts also have construed the Act in a manner consistent with the Secretary’s original construction, requiring the Secretary to consider the combined effect of non-severe impairments. See, e.g., Brady v. Heckler, 724 F.2d 914, 921 (11th Cir.1984); Felshina v. Schweiker, 707 F.2d 71, 73 (2d Cir.1983); Camp v. Schweiker, 643 F.2d 1325, 1333 (8th Cir.1981); Brenem v. Harris, 621 F.2d 688, 690 (5th Cir.1980); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir.1968). The district court found that the regulations and rulings of the Secretary were contrary to the plain meaning of the statute, calling “dubious” the logic of" }, { "docid": "2838870", "title": "", "text": "threshold severity showing as as a \"de minimis” requirement. See, e.g., Farris v. Secretary of Health and Human Services, 773 F.2d 85, 89 (6th Cir.1985); Estran v. Heckler, 745 F.2d 340, 341 (5th Cir.1984); Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir.1984); Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984) (per curiam); Chico v. Schweiker, 710 F.2d 947, 954-55 & n. 10 (2d Cir.1983). The government has submitted as supplemental authority a new Social Security Ruling which attempts to clarify policy on step two of the sequential process. The ruling was signed September 17 and has not yet been published. We note, however, that it adopts the “slight abnormality” or “de minimis\" interpretation taken by at least five of the circuits. We express no view as to the validity of the new ruling because it is unpublished and because we hold that the regulation it interprets is inconsistent with the Social Security Act. . The absence of support for the Secretary’s position in either the statute or the legislative history is fatal to her claim that the severity regulation promotes efficiency. As the Seventh Circuit correctly concluded: \"[Efficiency arguments provide absolutely no basis for the Secretary to violate Congressional mandates to implement properly the disability benefits program of this nation.” Johnson v. Heckler, 769 F.2d at 1213. . Indeed, the Secretary has issued a ruling, binding on all Social Security Administration personnel, that specifically states that disability benefits may be denied “even though [the impairment] may prevent the individual from doing work that the individual has done in the past.” Social Security Ruling 82-56. In another ruling, the Secretary established a list of impairments that will be considered per se non-severe under step two of the severity regulation. Social Security Ruling 82-55. . Interestingly, the Third Circuit in Boeder notes that the Secretary denies benefits to 40.3 percent of disability applicants without any evaluation of their age, education, or past work experience. Baeder, 768 F.2d at 552." }, { "docid": "22905885", "title": "", "text": "fact-finding and a reassessment of the facts in light of the current regulations and the standards set forth in McShea. On remand, the Secretary is admonished to review the entire record with close scrutiny. This court has previously noted the Secretary’s consistent failure to develop an adequate record sufficient to support her findings. Wier on Behalf of Wier v. Heckler, 734 F.2d 955, 956-57 (3d Cir.1984). Under McShea, it is the duty of the Secretary to examine the underlying facts and not to view independent, administration-oriented tests in isolation from the volume of hospital records detailing eight years of treatment. See 700 F.2d at 118-19. In this case, the records reveal that Purter did not have a treating physician per se. Rather he relied, as many people do, on hospital emergency room and out-patient clinics to treat his illnesses. See, e.g., (R at 273). These records are significant in detailing the medical history of this claimant. They are the functional equivalent to reports of a treating physician and, as such, must be given substantial weight. See Wallace v. Secretary of Health and Human Services, 722 F.2d 1150, 1155 (3d Cir.1983). Further, the Secretary must not only determine whether Purter has lost the ability to control his addiction to alcohol, but also, how the evidence of alcoholism and its effects on his other impairments relates to his functional abilities. See Mellon v. Heckler, 739 F.2d 1382, 1383 (8th Cir.1984) (citing Orr, 737 F.2d at 771). It is not enough for the AU to simply find that claimant’s impairments, when considered in combination, are not disabling without articulating the basis for his decision. Wallace, 722 F.2d at 1155 n. 8 (citing Burnam v. Schweiker, 682 F.2d 456, 457 (3d Cir.1982)). Finally, we direct the Secretary to examine the Secretary’s regulations pertaining to certain contingencies upon which benefits may be conditioned. In consideration of Purter’s historic inability to complete successfully the prescribed regimen for detoxification, we believe that such conditions are a proper method of ensuring that these benefits are applied to support the claimant’s need to overcome the addiction and not to" }, { "docid": "18354612", "title": "", "text": "lift her left arm. Regardless of the testimony of a vocational expert to that effect, the ALJ never considered vocational factors or determined Christopher’s residual functional capacity. See Christopher Aff. Like members of the class they propose to represent, the named plaintiffs were denied benefits because the Secretary applied the regulation which the Third Circuit invalidated in Baeder. They seek the opportunity to have the final determination of disability focus on all relevant factors mandated by the Act. There is no potential for conflict among class members because all of them want their individual cases to be evaluated fairly, with all relevant factors taken into account. Furthermore, plaintiffs’ counsel has considerable experience in Social Security litigation and will ably represent the interests of the class. Declaration of Richard Yaskin, October 1, 1984, ¶¶ 14-16. Accordingly, the commonality, typicality and adequacy of representation requirements of Fed.R.Civ.P. 23(a) are satisfied. Plaintiffs have defined the class by reference to the scope of the Secretary’s challenged policies. It is clear that the Secretary has acted or refused to act on grounds generally applicable to the class, thereby making injunctive or declaratory relief with respect to the class as a whole appropriate. Fed.R.Civ.P. 23(b)(2). See Alliance to End Repression v. Rockford, 565 F.2d 975, 978 (7th Cir.1977). Two other district courts have recently certified class actions which challenged the severity regulations at issue here. Dixon, supra, 589 F.Supp. 1494 (S.D.N.Y.1984); Smith, supra, 595 F.Supp. 1173. District judges in New Jersey have also certified class actions challenging other applications of the Secretary’s regulatory authority. Tustin, supra, 591 F.Supp. 1049; Rivera v. Heckler, 568 F.Supp. 235 (D.N.J.1983) (Lacey, J.). See generally Kuehner v. Schweiker, 717 F.2d 813 (3rd Cir.1983). B. The Jurisdictional Requirement of § 405(9) A class may be certified under the Act only if each prospective class member individually satisfied the jurisdictional requirements of 42 U.S.C. § 405(g). Califano v. Yamasaki, 442 U.S. 682, 701, 704, 99 S.Ct. 2545, 2559, 61 L.Ed 2d 176 (1979); Mathews v. Diaz, 426 U.S. 67, 71 n. 3, 96 S.Ct. 1883, 1887, 48 L.Ed.2d 478 (1976); Weinberger v. Salfi," }, { "docid": "4986765", "title": "", "text": "(7th Cir.1983), the courts simply assumed the validity of the severity requirement. McCoy v. Schweiker, 683 F.2d 1138 (8th Cir.1982) (en banc) dealt only with the validity of the appendix to medical-vocational guidelines. While upholding the validity of the five-step disability determination scheme, the court in Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 7 (1st Cir.1982), expressly noted that claimant had not challenged the validity of 20 C.F.R. § 404.1520(c). Other courts of appeals have cast doubt upon the facial validity of the severe impairment requirement, yet hesitated to make a definitive ruling. Judge Friendly discussed at length the “close question” presented by the “seeming conflict” between the severity requirement and the statutory definition of disability but declined to rule on the matter in Chico v. Schweiker, 710 F.2d 947 (2d Cir.1983). Similarly, the court in Delgado v. Heckler, 722 F.2d 570 (9th Cir.1983), declined to consider the “very troubling contention” that the severe impairment requirement contravenes the statutory definition of disability. See also, Scruggs v. Schweiker, 559 F.Supp. 100 (D.Tenn.1982) (20 C.F.R. § 404.1520(c) deemed invalid). Another court of appeals has given a narrow reading to 20 C.F.R. § 404.1520(c). Brady v. Heckler, 724 F.2d 914 (11th Cir.1984). By interpreting 20 C.F.R. § 404.-1520(c) narrowly and in a manner designed to ensure consistency with both the statutory definition of disability and existing case law it appears to this court quite possible to sidestep the question of the facial invalidity of the severe impairment requirement. Regulations promulgated pursuant to the Social Security Act must be construed to carry out the clear intent of statutory language. Giacone v. Schweiker, 656 F.2d 1238, 1242 (7th Cir.1981). The regulations describe a “severe” impairment as one which “significantly” limits the claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), .1521(a). The regulations do not define “significant” but the ordinary usage of the word suggests that the requirement of significance is not a particularly high one. Webster’s defines “significant” as “having a meaning,” “deserving to be considered,” and “having or likely to have an influence or" }, { "docid": "22409791", "title": "", "text": "severe[.]” 20 C.F.R. § 404.1522 (1981). Perhaps because the statutory history weighs so heavily in favor of plaintiffs, the Secretary rests his case on the rather remarkable argument that the very congressional act that overruled his policy at the sarnie time implicitly validated it, because Congress in passing the 1984 amendment never specifically stated that the Secretary’s policy was contrary to the Act. We, like the Seventh Circuit in Johnson v. Heckler, 769 F.2d 1202, 1213-15 (7th Cir.1985), find little merit to this contention. The Secretary explained the rationale of his refusal to consider the combination of impairments as follows: Inasmuch as a non-severe impairment is one which does not significantly limit basic work-related functions, neither will a combination of two or more such impairments significantly restrict the basic work-related functions needed to do most jobs. Social Security Ruling 82-55. We find it difficult to follow the Secretary’s reasoning. As one court phrased it, “[i]n much the same way, a mathematician might prove that because two does not equal four, two plus two never equals four either.” Dixon v. Heckler, 589 F.Supp. 1494, 1508 (S.D.N.Y.1984). It seems simply a matter of common sense that various physical, mental, and psychological defects, each non-severe in and of itself, might in combination, in some cases, make it impossible for a claimant to work. The Social Security Act has long recognized this, and until 1980, so did the Secretary. The order of the district court invalidating the Secretary’s policy prior to December 1,1984 of not considering the combined effects of non-severe impairments is affirmed. Accord Johnson v. Heckler, 769 F.2d at 1213; Bowen v. Heckler, 748 F.2d 629, 634-35 (11th Cir.1984); Felshina v. Schweiker, 707 F.2d 71, 73 (2d Cir.1983); Burman v. Schweiker, 682 F.2d 456, 458 (3d Cir.1982). Affirmed in part, vacated in part, and remanded for further proceedings not inconsistent herewith. . Title 42 U.S.C. §§ 401 et seq. (1982 and Supp. 1984) and the regulations codified at 20 C.F.R. §§ 404.1 et seq. (1986) pertain to the OASDI program under Title II of the Social Security Act. Title 42 U.S.C. §§" }, { "docid": "18708549", "title": "", "text": "interpretation consistent with the statute. As Judge Posner noted at 197: “If you do not have a severe impairment you are not disabled even if you have some slight impairment that disables you from performing any work which you have or are qualified to do. But in a practical sense an impairment that prevents an applicant from doing any work he is qualified to do is a severe impairment, for by hypothesis it is totally disabling, and the statute itself — 42 U.S.C. § 423(d)(2)(A) again — defines ‘severe’ in just that practical way.” See also Lofton v. Schweiker, 653 F.2d 215 (5th Cir.), cert. denied, 454 U.S. 1089, 102 S.Ct. 651, 70 L.Ed.2d 626 (1981) (validity assumed); Goodermote v. Secretary of Health and Human Services, 690 F.2d 5 (1st Cir.1982) (validity not challenged). Other courts of appeals have discussed the validity of the severity test but have declined to make a definitive ruling with regard to the regulation’s validity focusing instead on the Secretary’s application of the regulation based on the factual circumstances. Chico v. Schweiker, 710 F.2d 947 (2d Cir.1983); Delgado v. Heckler, 722 F.2d 570 (9th Cir.1983); Brady v. Heckler, 724 F.2d 914 (11th Cir.1984). In Scruggs v. Schweiker, 559 F.Supp. 100 (D.Tenn.1982), District Judge Morton, while not expressly invalidating the regulation, held that where the Secretary ends the sequential evaluation at the second inquiry the court would assume for review purposes that, had the evaluation continued, the AU would have found plaintiff able to return to his past relevant work. The severity test was expressly upheld in Moore v. Heckler, 575 F.Supp. 180 (D.Me.1983). Several cases in this district have criticized the application of the non-severe impairment regulation while not deciding the validity question. Floyd v. Schweiker, 550 F.Supp. 863, 868 (N.D.Ill.1982); Deuter v. Schweiker, 568 F.Supp. 568 (N.D.Ill.1983); Hundrieser v. Heckler, 582 F.Supp. 1231 (N.D.Ill.1984). In Hundrieser, Judge Moran “sidestepped” the question of the validity of the severe impairment requirement by interpreting the regulation narrowly and in a manner designed to ensure consistency with both the statutory definition of disability and existing case law noting," }, { "docid": "23299267", "title": "", "text": "noted that “it is certain that mental and psychological defects can combine with physical impairments to create total disability to perform gainful employment.” Id. at 690 (citations omitted). See also Wiggins v. Schweiker, 679 F.2d 1387, 1392 (11th Cir.1982) (“ALJ must consider not only the disabling effect of each of the appellant’s ailments individually, but also the combined effect of all of the appellant’s impairments.”). In Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir.1984), we pointed out that administrative law judges do not follow the regulations when they fail to consider the combination of a claimant’s impairments. The regulations provide: [W]e can combine unrelated impairments to see if together they are severe enough to keep you from doing substantial gainful activity. We will consider the combined effects of unrelated impairments only if all are severe and expected to last 12 months. 20 C.F.R. § 404.1522 (1984). In Reeves, we also indicated that where an administrative law judge considers a claimant’s impairments separately but not together the regulations require “that the case be remanded for further consideration under the appropriate standards.” Reeves v. Heckler, 734 F.2d at 525 (emphasis added). Our conclusion reached in these cases is now bolstered by the recently enacted Social Security Disability Benefits Reform Act of 1984 which amended two pertinent sections of the Social Security Act. The amendments require the Secretary to “consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity.” Thus, we hold that where, as here, a claimant has alleged a multitude of impairments, a claim for social security benefits based on disability may lie even though none of the impairments, considered individually, is disabling. In such instances, it. is the duty of the administrative law judge to make specific and well-articulated findings as to the effect of the combination of impairments and to decide whether the combined impairments cause the claimant to be disabled. See Reeves v. Heckler, 734 F.2d 519 (11th Cir.1984); Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir.1982); see also Farley v. Celebrezze," }, { "docid": "4976674", "title": "", "text": "despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). If, at any stage in this five-step process, there is a finding that the claimant is not disabled, the review comes to an end and the Secretary does not inquire further into those factors that remain. The severity regulation promulgated by the Secretary is already the subject of litigation in another action brought in this district, Dixon v. Heckler, No. 83 Civ. 7001(MEL) (S.D.N.Y.). That lawsuit was brought on behalf of a class of disability claimants seeking declaratory and injunctive relief against, inter alia, the Secretary’s use of the severity regulation to evaluate claims for disability benefits. In a decision dated June 22, 1984, Judge Lasker granted plaintiffs’ motion for class certification as well as their motion for preliminary injunctive relief against the Secretary’s enforcement of the severity regulation. Dixon v. Heckler, 589 F.Supp. 1494 (S.D.N.Y.1984). Subsequently, Judge Lasker issued an order requiring the Secretary to consent to or move for remand in all cases involving Dixon class members. Dixon v. Heckler, No. 83 Civ. 7001(MEL) (S.D.N.Y. July 25, 1984). One of the grounds upon which the Dixon court relied in preliminarily enjoining enforcement of the severity regulation was that the regulation conflicted with “longstanding judicial interpretations of the burden of proof which claimants must satisfy in order to establish a prima facie case of disability.” 589 F.Supp. at 1505. Another justification advanced in Dixon for striking the regulation was that it permitted the Secretary to find that claimants suffered from no disability, “without considering whether their impairments, in light of their age, education, and work experience, permit them to perform gainful work.” Id. at 1502 (emphasis in text). The court in Dixon therefore concluded that plaintiffs had proven a likelihood of success on the merits of their claim that the disability evaluation required under the regulation conflicts with the" }, { "docid": "23590546", "title": "", "text": "See Green v. Schweiker, 694 F.2d 108 (5th Cir.1982). Neither treating physician prescribed pain medication. The ALJ’s credibility findings as to the debilitating effects of pain are entitled to considerable judicial deference. Jones v. Heckler. The ALJ also considered Dellolio’s complaints concerning diarrhea but found them unsupported by the requisite objective medical evidence. The periodic episodes of diarrhea were not found to impair significantly claimant’s capacity to perform light work. Although the ALJ referred to the opinions of Drs. Price and Dillard regarding Dellolio’s tolerance for dust, fumes, gases and extreme fluctuations of temperature or humidity, he made no findings as to their significance vis-a-vis her exertional capacity. It is clear that while there is ample support in the record for the ALJ’s assessment of claimant’s exertional capacity, there is uncontroverted medical evidence suggesting that the types of light work which she can perform may be limited. Thus under the present state of the record we cannot determine whether these environmental restrictions rise to the level of nonexertional impairments, or foreclose Dellolio’s access to the full range of occupations encompassed within the regulatory definition of “light work.” Thomas. See Broz v. Schweiker, 677 F.2d 1351 (11th Cir.1982); Gagnon; Ferguson v. Schweiker, 641 F.2d 243 (5th Cir.1981). The absence of the requisite findings by the ALJ compels a remand for resolution of the question, raised by objective medical evidence, whether claimant’s capacity for light work is diminished by environmental limitations. Should it be determined that such limitations reduce the number of jobs which Dellolio might be able to perform, and that this effect cannot be measured under the Medical-Vocational Guidelines, plenary consideration must be accorded all relevant facts. In that situation, expert vocational testimony is required. Thomas. See Burnam v. Schweiker, 682 F.2d 456 (3d Cir.1982). Finally, claimant contends that the ALJ failed to evaluate the degree of impairment caused by the interaction or cumulation of her various exertional and nonexertional limitations. It is well-established that an analysis must be made “not only [of] the disabling effect of each of the [claimant’s] ailments, but also the combined effect of all of" }, { "docid": "22409775", "title": "", "text": "own have addressed the validity of the Step 2 regulation. Five have held the regulation invalid on its face, on the ground that the Social Security Act does not permit a finding of non-disability based on medical factors alone, without consideration of vocational factors. Baeder v. Heckler, 768 F.2d 547 (3d Cir.1985); Johnson v. Heckler, 769 F.2d 1202, reh’g denied by an equally divided court, 776 F.2d 166 (7th Cir.1985); Brown v. Heckler, 786 F.2d 870 (8th Cir.1986); Yuckert v. Heckler, 774 F.2d 1365 (9th Cir.1985), cert. granted, — U.S. —, 106 S.Ct. 1967, 90 L.Ed.2d 652 (1986); Hansen v. Heckler, 783 F.2d 170 (10th Cir.1986). The five remaining courts have upheld the regulation, but only if applied as a de minimis policy designed to screen out totally frivolous claims. Chico v. Schweiker, 710 F.2d 947, 954-55 n. 10 (2d Cir.1983); Evans v. Heckler, 734 F.2d 1012 (4th Cir. 1984); Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985); Farris v. Secretary of Health and Human Services, 773 F.2d 85 (6th Cir.1985); Brady v. Heckler, 724 F.2d 914 (11th Cir.1984). The Supreme Court recently stepped into the controversy when it granted certiorari in Yuckert, indicating that by the end of the next Term the present controversy should be resolved once and for all. This court recently addressed the Step 2 regulation in Andrades v. Secretary of Health and Human Services, 790 F.2d 168 (1st Cir.1986), and Munoz v. Secretary of Health and Human Services, 788 F.2d 822 (1st Cir.1986). In each case, the Secretary had denied benefits on the ground that the applicant’s impairment was not severe, and the district court affirmed. We vacated both judgments, and remanded the cases to the Secretary for reconsideration in light of Social Security Ruling 85-28, which had recently been promulgated by the Secretary to interpret the severity regulation. We strongly suggested in each case that we considered the Step 2 regulation, as interpreted by the Secretary in Ruling 85-28, to be a valid de minimis screening device. Today we make that suggestion explicit. We find no indication that Congress intended to preclude the Secretary" }, { "docid": "23299268", "title": "", "text": "further consideration under the appropriate standards.” Reeves v. Heckler, 734 F.2d at 525 (emphasis added). Our conclusion reached in these cases is now bolstered by the recently enacted Social Security Disability Benefits Reform Act of 1984 which amended two pertinent sections of the Social Security Act. The amendments require the Secretary to “consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity.” Thus, we hold that where, as here, a claimant has alleged a multitude of impairments, a claim for social security benefits based on disability may lie even though none of the impairments, considered individually, is disabling. In such instances, it. is the duty of the administrative law judge to make specific and well-articulated findings as to the effect of the combination of impairments and to decide whether the combined impairments cause the claimant to be disabled. See Reeves v. Heckler, 734 F.2d 519 (11th Cir.1984); Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir.1982); see also Farley v. Celebrezze, 315 F.2d 704, 708 (3d Cir.1963) (“Just as all physical and all mental impairments must be taken into account in determining the extent of disability, so may physical and mental impairments in their totality result in a finding of disability.”); Tingling v. Secretary of Health and Human Services, 575 F.Supp. 905, 909 (S.D.N.Y.1983) (“the ALJ, must view the individual claimant as a whole; disability claimants are not to be evaluated as having several isolated symptoms.”); Karp v. Schweiker, 539 F.Supp. 217, 220 (N.D.Calif.1982) (Each illness, standing alone and measured in the abstract, may not be disabling. But disability claimants are not to be evaluated as having several hypothetical and isolated illnesses.”); Stewart v. Harris, 509 F.Supp. 31, 35 (N.D.Calif.1980) (“[I]t is ... essential that the AU make a specific and well-articulated finding as to the effect of the combination of impairments.”). IV. Conclusion In deciding whether to reverse, we are faced with the question of whether reversal is appropriate where: (1) the administrative law judge has failed to apply the correct legal standards to the" }, { "docid": "18708550", "title": "", "text": "v. Schweiker, 710 F.2d 947 (2d Cir.1983); Delgado v. Heckler, 722 F.2d 570 (9th Cir.1983); Brady v. Heckler, 724 F.2d 914 (11th Cir.1984). In Scruggs v. Schweiker, 559 F.Supp. 100 (D.Tenn.1982), District Judge Morton, while not expressly invalidating the regulation, held that where the Secretary ends the sequential evaluation at the second inquiry the court would assume for review purposes that, had the evaluation continued, the AU would have found plaintiff able to return to his past relevant work. The severity test was expressly upheld in Moore v. Heckler, 575 F.Supp. 180 (D.Me.1983). Several cases in this district have criticized the application of the non-severe impairment regulation while not deciding the validity question. Floyd v. Schweiker, 550 F.Supp. 863, 868 (N.D.Ill.1982); Deuter v. Schweiker, 568 F.Supp. 568 (N.D.Ill.1983); Hundrieser v. Heckler, 582 F.Supp. 1231 (N.D.Ill.1984). In Hundrieser, Judge Moran “sidestepped” the question of the validity of the severe impairment requirement by interpreting the regulation narrowly and in a manner designed to ensure consistency with both the statutory definition of disability and existing case law noting, “Regulations promulgated pursuant to the Social Security Act must be construed to carry out the clear intent of statutory language.” at 1241, citing Giacone v. Schweiker, 656 F.2d 1238, 1242 (7th Cir.1982). In two unpublished opinions, the Tenth Circuit upheld the validity of the severity test in the Regulations, Chapman v. Schweiker, No. 81-1025 (10 Cir., Feb. 26, 1982) and Hilton v. Schweiker, No. 81-1139 (10 Cir. Feb. 26, 1982), but after rehearing en banc, the full court ordered the opinions withdrawn and remanded the cases to the district court for further development on the question of validity. A review of these opinions indicates that while some courts deemed the issue required analysis, a dispositive resolution of constitutionality was not required in that the regulations were accorded their proper impact within the legislative intent of the Act itself. Similarly here, the challenge to the Regulations need not be resolved. The review of the Secretary’s decision has been conducted in the context of the legislative purpose of the Act and the regulations. It is recommended the" }, { "docid": "22286370", "title": "", "text": "impairments in determining whether a claimant was disabled. See 33 Fed.Reg. 11749, 11750 (1968), codified at 20 C.F.R. § 404.-1501(a)(1) (1969) (defining disability as “inability to engage in any substantial gainful activity by reason of ... impairment or impairments”) (emphasis added). The “contemporaneous administrative construction of [an] Act is persuasive evidence of the original understanding.” United States v. Sheffeld Board of Commissioners, 435 U.S. 110, 131, 98 S.Ct. 965, 979, 55 L.Ed.2d 148 (1978). Other federal courts also have construed the Act in a manner consistent with the Secretary’s original construction, requiring the Secretary to consider the combined effect of non-severe impairments. See, e.g., Brady v. Heckler, 724 F.2d 914, 921 (11th Cir.1984); Felshina v. Schweiker, 707 F.2d 71, 73 (2d Cir.1983); Camp v. Schweiker, 643 F.2d 1325, 1333 (8th Cir.1981); Brenem v. Harris, 621 F.2d 688, 690 (5th Cir.1980); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir.1968). The district court found that the regulations and rulings of the Secretary were contrary to the plain meaning of the statute, calling “dubious” the logic of her ruling which finds that a combination of non-severe impairments cannot be severe. See SSR 82-55. Johnson v. Heckler, 593 F.Supp. at 381. The court indicated that the “proper interpretation\" of the statute required that the Secretary not “fragmentize” the impairments, but rather “treat them in combination.” Id., quoting Griggs v. Schweiker, 545 F.Supp. 475, 477 (S.D.W. Va.1982). The court therefore declared the regulations and rulings invalid. Our analysis above confirms the correctness of the district court’s conclusion. The 1984 Amendment does not change the propriety of the court’s decision, as the court correctly held in denying the Secretary’s motion to alter or amend. Even if we had only the general statements of purpose of the 1984 Amendment discussed above, the conclusion that the 1984 Amendment was meant to clarify the original interpretation of Congress that non-severe impairments must be combined to determine whether a disability exists would be obvious. As the earlier discussion indicated, the 1984 Amendment was remedial in character and intended to liberalize the present policies so as to “restore confidence” in" }, { "docid": "7165380", "title": "", "text": "judge failed to consider the fact that lack of volition and self-confidence is a symptom of schizophrenia, not a reason for finding nondisability. Branham v. Gardner, 383 F.2d 614, 633 (6th Cir.1967); Morrone v. Secretary of HEW, 372 F.Supp. 794, 801 (E.D.Pa.1974); DSM-III, supra note 16, at 182-183. The Secretary should reevaluate this assessment on remand. . Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460 § 5, 98 Stat. 1801 (codified at 42 U.S.C. § 421 (Supp. III 1985)). . Revised Mental Impairments Listings, supra note 61, 50 Fed.Reg. at 35038. . See notes 42-64 supra and accompanying text. . ALJ Decision, supra note 3, at 6, J.App. 36. . Lebus v. Harris, supra note 62, 526 F.Supp. at 61; see also Guzman Diaz v. Secretary of HEW, 613 F.2d 1194, 1197 (1st Cir.1980); Stawls v. Califano, supra note 26, 596 F.2d at 1211; Miller v. Heckler, 747 F.2d 475, 478 (8th Cir.1984); Dreste v. Heckler, 741 F.2d 224, 226 (8th Cir.1984); DSM-III, supra note 16, at 188-189. . Revised Mental Impairments Listings, supra note 61, 50 Fed.Reg. at 35040. . Revised Mental Impairments Listings, supra note 61, 50 Fed.Reg. at 35067. . Powell v. Heckler, 773 F.2d 1572, 1575-1576 (11th Cir.1985); Ostrowski v. Heckler, 609 F.Supp. 1109, 1114-1115 (N.D.Ill.1985); Woods v. Schweiker, [1984 Tr. Binder] Unemp. Ins. Rep. (CCH) ¶ 15127, at 2116 (N.D.Ala.1983). . Powell v. Heckler, supra note 97, 773 F.2d at 1575-1576. . Revised Mental Impairments Listings, supra note 61, 50 Fed.Reg. at 35067; see Lashley v. Secretary of HHS, supra note 58, 708 F.2d at 1053; Ostrowski v. Heckler, supra note 97, 609 F.Supp. at 1114; Woods v. Schweiker, supra note 97, [1984 Tr. Binder] Unemp. Ins. Rep. (CCH) at 2110. . Lebus v. Harris, supra note 62, 526 F.Supp. at 61. . See Letter from Dr. Y. Rouleau, supra note 17, at 2, J.App. 69. . Tr. 52-55. The Secretary must give such lay testimony “serious and fair consideration.” Narrol v. Heckler, supra note 45, 234 U.S.App.D.C. at 207, 727 F.2d at 1306; Lashley v. Secretary of HHS, supra note 58," } ]

[ { "docid": "21387369", "title": "", "text": "this Court in which a private remedy under Rule 10b-5 was sustained, there were averments that the false statements were known to defendants to be false. Baron v. Shields, 131 F.Supp. 370 (S.D.N.Y.1954); Greenwich Savings Bank v. Shields, 131 F.Supp. 368 (S.D.N.Y.1955). Professor Loss believes that some element of scienter, even if “watered-down”, must be required for a private remedy under Rule 10b-5 or that Rule would be in excess of the powers of the Commission. Loss, above cited, at 1766. Ellis v. Carter, 291 F.2d 270 (9th Cir. 1961), without citing Fischman on this point, reaches a contrary result. Judge McLean has recently followed Ellis v. Carter and ruled that in a private action under Section 17(a) of the 1933 Act there need be no averment of scienter. Dack v. Shanman, 227 F.Supp. 26 (S.D.N.Y.1964). Since Fischman has been neither overruled nor disapproved by our Court of Appeals, I do not feel that I am at liberty to follow Ellis v. Carter. O’Neill v. Maytag, 339 F.2d 764 (2d Cir. 1964) and List v. Fashion Park, Inc., 340 F.2d 457 (2d Cir. 1965) do not cite Fischman and do not seem to affect its validity. For example, O’Neill dealt with breach of a fiduciary obligation. The court said (339 F.2d at 767-768): “At least where the duty allegedly breached is only the general duty existing among corporate officers, directors and shareholders, no cause of action is stated under Rule 10b-5 unless there is an allegation of facts amounting to deception.” Later, with reference to “deception”, the court said that it “need not be deception in any restricted common law sense” but that “there must be allegation of facts amounting to deception in one form or another” (339 F.2d at 768). The emphasis on the word “deception” seems to indicate a view that innocent or negligent misrepresentations would not give rise to a cause of action under Rule 10b-5; “deception” has a meaning similar to' “cheating” or “hoodwinking” (Webster’s Third New International Dictionary, p. 585). But were I free to do so, I would not follow Ellis v. Carter which," } ]

[ { "docid": "3401120", "title": "", "text": "misleading statement. Moreover, this section requires that the misleading information be made by the purchaser to the seller or vice-versa. Elfenbein v. Yaeger, CCH 64-66 Fed.Sec.L.Rep. If 91, 368 (S.D.N.Y.1964). Under the most liberal reading of the complaint, there is no allegation that defendant Friedman was either a purchaser or a seller of any securities. The alleged misrepresentations of the stock transaction to the shareholders of Banner does not state a cause of action under section 9(a) (4) because the misleading statements alleged were not made to a purchaser or seller. See Elfenbein v. Yaeger, supra. Section 10(b) and Rule 10b-5 Plaintiff’s request for relief under this section and Rule must be dismissed for failure to state a cause of action. There is liability under these provisions only if the alleged fraud or deceit is “in connection with the purchase or sale of [a] security.” O’Neill v. Maytag, 339 F.2d 764, 768 (2d Cir. 1964); Howard v. Levine, 262 F.Supp. 643 (S.D.N.Y.1965); Heit v. Weitzen, 260 F.Supp. 598 (S.D.N.Y.1966). The only transaction involving the transfer of securities alleged in the complaint is the “issuance of stock to the directors without “fair consideration.” (complaint para. 3). However, it is clear that not every transaction involving securities, even if in violation of state law, states a cause of action under Rule 10b-5. Thus, our Court of Appeals has stated: [W]here the duty allegedly breached is only the general duty existing among corporate officers, directors and shareholders, no cause of action is stated under Rule 10b-5 unless there is an allegation of facts amounting to deception. O’Neill v. Maytag, 339 F.2d 764, 767-768 (2d Cir. 1964). (Emphasis supplied). The complaint is thus defective as to defendant Friedman in that it nowhere alleges any fraud or deceit by him. See O’Neill v. Maytag, 230 F.Supp. 235, 239 (S.D.N.Y.), aff’d. 339 F.2d 764 (2d Cir. 1964); Howard v. Levine, supra; Weber v. C. N. P. Corp., 242 F.Supp. 321, 325 (S.D.N.Y.1965). Section 14(a) Plaintiff alleges various omissions and misstatements in Banner’s proxy statements, and charges that these constitute violations of this section of the Exchange" }, { "docid": "20947955", "title": "", "text": "of the court of appeals for this circuit, viz., Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952), cert. den., 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1953); O’Neill v. Maytag, 339 F.2d 764 (2d Cir. 1964); List v. Fashion Park, Inc., 340 F.2d 457 (2d Cir. 1965), cert. den., 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965); and attempt to distinguish the fourth, Ruckle v. Roto American Corp., 339 F.2d 24 (2d Cir. 1964). These decisions provide the framework within which this motion is to be decided. In working within this framework, the undersigned is guided by recent decisions in this district court, in which the rules contained in the above-mentioned decisions of the court of appeals have been applied. These include Barnett v. Anaconda Co., 238 F.Supp. 766 (S.D.N.Y. 1965), and Hoover v. Allen, 241 F.Supp. 213 (S.D.N.Y.1965). In opposing the motion to dismiss, the plaintiff supports its position by reference to Barnett v. Anaconda Co., supra, which it cites as correctly summarizing the principles of Ruckle v. Roto American Corporation, supra; O’Neill v. Maytag, supra, and List v. Fashion Park, Inc., supra, and contends that, as set out in Barnett, the requirements for stating a good claim under § 10(b) have been met in this case. The defendants’ several arguments will now be considered. The defendants’ first argument focuses on the question of the status of the plaintiff. They note that Birnbaum v. Newport Steel Corp., supra, requires that the plaintiff must have been a purchaser or a seller of securities. Indeed, it is stated in the Birnbaum opinion that: “Rule X-10B-5 extended protection only to the defrauded purchaser or seller. Since the complaint failed to allege that any of the plaintiffs fell within either class, the judgment of the district court was correct and is accordingly affirmed.” The defendants evidently question whether the issuing corporation, on behalf of whom this derivative action is brought, may qualify under the Act as “the ‘seller?’ of its own stock” [sic]. That question would seem to have been definitively answered in the affirmative, in" }, { "docid": "5946939", "title": "", "text": "that there is a question of fact as to whether the “discussions” could properly be considered “negotiations” at the time of the rights offering. Plaintiff may properly be considered a purchaser of Armour securities. Hooper v. Mountain States Sec. Corp., 282 F.2d 195 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); see H. L. Green Co. v. Childree, 185 F.Supp. 95 (S.D.N.Y. 1960); cf. Ruckle v. Roto Am. Corp., 339 F.2d 24, 27 (2d Cir. 1964). And as such, the trier of fact could conclude that Armour’s activity was an “attempt to induce * * * [plaintiff and other BLH shareholders] to purchase any such security” or a “security of the same class and series,” and thus find a violation of Rule 10b-6(a) (2). The fact that the mere mechanics of the merger may not have been consummated until July does not remove the transaction from the operation of the Rule, since the prohibited act, namely, the alleged attempts to induce the purchase of the Armour securities, purportedly occurred in February. Whether these discussions had the effect of artificially maintaining the price of Armour is also an issue of fact. Accordingly, material issues of fact are presented with respect to plaintiff’s 10b-6 claim and summary judgment must be denied on the first cause of action. The Second Cause of Action of the Complaint. The claims of plaintiff in the second count of his complaint are alleged only against Armour and Evans. They are alleged solely in a derivative capacity on behalf of BLH and jurisdiction is based upon diversity of citizenship (Complt. j[j[ 57, 58). There is no identification of specific state law or of the legal theory upon which plaintiff purports to rely in asserting this claim. The allegations in the second count are quite confused and no explanation thereof to dispel this confusion was offered until plaintiff’s rejoinder memorandum was filed in court at the time of oral argument. Construing the pleadings so as to do substantial justice in accordance with Rule 8(f) of the Federal Rules of Civil Procedure, I" }, { "docid": "23596758", "title": "", "text": "in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” While this rule does not provide for private causes of action, ic now seems settled that such will lie, even for defrauded purchasers. Ellis v. Carter, 9 Cir., 1961, 291 F.2d 270; Fischman v. Raytheon Mfg. Co., 2 Cir., 1951, 188 F.2d 783; cf. J. I. Case Co. v. Borak, 1964, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423. . The reorganization was designed to fall under section 368(a) (1) (C) of the Internal Revenue Code of 1954. Coronet would sell all its assets to Texstar for Texstar stock and then, within a year, distribute that stock to its shareholders and dissolve. . Kuehnert has alleged no common law action for deceit. . See Joseph v. Farnsworth Radio & Television Corp., S.D.N.Y., 1951, 99 F.Supp. 701, 706, aff’d., 2 Cir., 1952, 198 F.2d 883, Ruckle v. Roto American Corp., 2 Cir., 1964, 339 F.2d 24, 28 (dictum), Buchholtz v. Renard, S.D.N.Y., 1960, 188 F.Supp. 888; Donovan, Inc. v. Taylor, N.D.Cal., 1955, 136 F.Supp. 552, 553; but see Brennan v. Midwestern United Life Ins. Co., N.D.Ind., 1966, 259 F.Supp. 673; cf. Cochran v. Channing Corp., S.D.N.Y., 1962, 211 F.Supp. 239; Texas Continental Life Ins. Co. v. Bankers Bond Co., W.D.Ky., 1960, 187 F.Supp. 14, rev’d on other grounds sub nom. Texas Continental Life Ins. Co. v. Dunne, 6 Cir., 1962, 307 F.2d 242. For a discussion of the necessity of a “semblance of privity” when stock is bought on the open market see 3 L.Loss, Securities Regulation 1767-71 (2d ed. 1961). . Strictly speaking, this may not have been so, but, again, we need not make the possibly complicated analysis. The assumption we have made is the most favorable to Kuehnert. . For cases involving unclean hands in labor disputes see Florida E. C. Ry." }, { "docid": "12312605", "title": "", "text": "proxy material misled the corporation and its stockholders. Defendants answer that, as in the Barnett case (238 F.Supp. at 774 et seq.), so here, the alleged fraud was not the means by which the redemption transaction was brought about. Cf. Hoover v. Allen, S.D.N.Y.1965, 241 F.Supp. 213, 229-230. It may be supposed that J. I. Case Co. v. Borak requires that the accused proxy material (whether considered in the perspective of Section 10 or Section 14 of the '34 Act) have a transactional function and not merely be randomly present in the context of the transaction with respect to which a remedy is sought. See O’Neill v. Maytag, 2d Cir. 1964, 339 F.2d 764, 767-768; Ruckle v. Roto American Corporation, 2d Cir. 1964, 339 F.2d 24, 29; Hooper v. Mountain States Securities Corporation, 5th Cir. 1960, 282 F.2d 195, 201-202; Schine v. Schine, S.D.N.Y.1966, 250 F.Supp. 822, 823; Simon v. New Haven Board & Carton Co., D. Conn.1966, 250 F.Supp. 297, 299; Eagle v. Horvath, S.D.N.Y.1965, 241 F.Supp. 341, 343-344; Kane v. Central American Mining & Oil, Inc., S.D.N.Y.1964, 235 F.Supp. 559, 563-564; New Park Mining Co. v. Cranmer, S.D.N.Y.1963, 225 F.Supp. 261, 264, 267 (25,000 share transaction) ; Textron, Inc. v. American Woolen Co., D.Mass.1954, 122 F.Supp. 305, 307-308. In the special form of an insistence upon proof of justifiable reliance in Rule 10(b)-5 cases List v. Fashion Park, Inc., 2d Cir. 1965, 340 F.2d 457, 462-464, emphasizes the same principle. Here the parties whose conduct is accused had the power to complete the transactions without any votes from others. Had no proxies been solicited, the transactions would nevertheless have been vulnerable if plaintiffs are right in saying that Buy-Rite was undervalued and G*E*S overvalued, and that by so manipulating values on the two transac tions National paid the premium for control out of Retail’s assets, at the expense, pro tanto, of its minority stockholders, rather than out of National’s own purse. The proxy material, so far as it is criticized for its failure to state — in substance — -that the transactions were breaches of fiduciary duty (that" }, { "docid": "23064030", "title": "", "text": "impliedly suggests that it does. Nevertheless, it is now common ground that an injured investor does have a private cause of action under Rule 10b-5, e. g., Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951). However, various concepts have been utilized to limit liability under the sweeping language of the Rule, although none is specifically required by it. 3 L. Loss, Securities Regulation 1763-67 (2d ed. 1961). Thus, a requirement of privity was at first suggested, see Joseph v. Farnsworth Radio & Television Corp., 99 F.Supp. 701 (S.D.N.Y.1951), aff’d per curiam, 198 F.2d 883 (2d Cir. 1952), but has more recently been ignored, e. g., Cochran v. Channing Corp., 211 F.Supp. 239, 243-245 (S.D.N.Y.1962); see Texas Continental Life Ins. Co. v. Dunne, 307 F.2d 242 (6th Cir. 1962); Cooper v. North Jersey Trust Co., 226 F.Supp. 972, 978 (S.D.N.Y.1964). However, the search for limiting doctrine has continued. Thus, some courts have looked to see whether a plaintiff actually relied on the allegedly fraudulent statement, whether such reliance was reasonable, whether the fraud actually caused the harm to plaintiff, whether the plaintiff’s injury was foreseeable, and whether plaintiff falls within the category of a buyer or seller of securities. In the face of the broad language of Rule 10b-5 and the measured judicial treatment of it, it is most important to ascertain precisely the theory upon which plaintiffs sue. In this court, appellants’ principal claim under Rule 10b-5 is that defendants “deceived [them] into buying Kresá shares which they would not have bought had they known the facts,” and that this fraud arose “in connection with Genesco’s purchase of Kress shares.” The alleged deceit was defendants’ silence as to their true fraudulent intentions and the actual value of Kress’s real estate. In other words, appellants claim that the maker of a tender offer to purchase the stock of a corporation can by silence violate a duty under the Act to plaintiffs even though he and they are both strangers to the corporation. Use of a tender offer by an outsider to obtain control of a publicly-held corporation is" }, { "docid": "3877892", "title": "", "text": "prevent the market prices from declining of the securities of Belock * * * as the defendants well knew and intended and the defendants [named] benefited therefrom. * * * The * * * statements * * * were circulated * * * to influence and manipulate the prices of securities of Belock * * * and constituted the employment * * * of a device, scheme or artifice to defraud * * * which operated as a fraud or deceit upon plaintiff and all others similarly situated. * * * The defendants had or were charged with knowledge of the facts alleged * * *” As to those allegations in the Howard complaint Judge Cooper held: “In addition, the allegations of fraud are legally insufficient even under a liberal construction of the pleadings afforded to plaintiffs on a motion to dismiss. O’Neill v. Maytag, 230 F.Supp. 235, 239 (S.D.N.Y.) aff’d., 339 F.2d 764 (2d Cir. 1964); Weber v. C.M.P. Corp., 242 F.Supp. 321 (S.D.N.Y.1965). * * *” In the complaint here under consideration no more is alleged for all that is stated is that “The individual defendants had knowledge or notice that the reports, statements and documents * * * were false, misleading and contained untrue statements of material facts * * * [and that] The dissemination of the statements * * * was intended to, and did, have the effect of artificially inflating the market prices of Belock’s common stock and debentures.” The complaint herein, to the extent that it purports to state a claim for relief under § 10(b) of the 1934 Act and Rule 10b-5 of the SEC is vulnerable. As aforesaid, the complaint also states that the claims asserted therein arise under § 18(a) of the 1934 Act. In this regard it differs from the complaint in the Howard case which made no such claim. Section 18(a) of the 1934 Act provides : “LIABILITY FOR MISLEADING STATEMENTS Sec. 18. (a) Any person who shall make or cause to be made any statement in any application, report, or document filed pursuant to this title or any" }, { "docid": "10270068", "title": "", "text": "cases in this circuit, which required at least a “semblance of privity” between purchaser and seller in a 10b-5 action, see, e. g., Joseph v. Farnsworth Radio & Television Corp., 99 F.Supp. 701, 706 (S.D.N.Y.1951), aff’d, 198 F.2d 883 (2d Cir. 1952), supply some authority for defendants’ position. The first explicit indication that a lack of privity was not fatal to a 10b-5 action appeared in Cochran v. Channing Corp., 211 F.Supp. 239 (S.D.N.Y.1962). Plaintiff claimed that he was defrauded into selling his stock in a corporation because defendant, who maintained control of the corporation’s board of directors, had reduced the dividend on the stock as part of a plan to depress its price and thus facilitate acquisition of the stock. Defendant contended, inter alia, that since plaintiff failed to allege that defendant actually purchased the shares he sold, plaintiff failed to state a cause of action. The court, relying in part on Fischman v. Raytheon Mfg. Co., supra, 188 F.2d 783 (2d Cir. 1951), held: “If plaintiff is able to prove at trial each and every allegation asserted in the complaint then the fact that there is no privity of contract does not amount to a fatal defect of proof. To the extent that the plaintiff falls short in his proof, the lack of privity between the parties will be one factor that will have to be taken into account.” 211 F.Supp. at 245. Subsequent to the Cochran decision, several cases in the Second Circuit, although not explicitly stating that privity is not required, have sustained claims under 10b-5 where there was no direct transaction between plaintiff and defendant. Crane Co. v. Westinghouse Air Brake Co., supra, 419 F.2d 787; Heit v. Weitzen, supra, 402 F.2d 909; Vine v. Beneficial Finance Co., supra, 374 F.2d 627; Astor v. Texas Gulf Sulphur Co., 306 F.Supp. 1333 (S.D.N.Y.1969). This view is shared by other circuits. In Reynolds v. Texas Gulf Sulphur Co., 309 F.Supp. 548 (D.Utah 1970), aff’d sub nom., Mitchell v. Texas Gulf Sulphur Co., 446 F.2d 90 (10th Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 564, 30 L.Ed.2d" }, { "docid": "23070516", "title": "", "text": "U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Texas Gulf Sulphur v. Ritter, 371 F.2d 145 (10th Cir. 1967); and Hooper v. Mountain States Securities Corp., supra. Given the propriety of New York venue, 1404(a) provides the only basis upon which this case could have been transferred to Florida. It brought the New York statute of limitations with it under Van Dusen, and the district court was correct in rejecting defendant’s statute of limitations argument. PRIVITY As recognized by the district court, there are three basic elements to be pled and proved in 10b-5 actions: (1) conduct by the defendants proscribed by the rule; (2) a purchase or sale of securities by the plaintiffs “in connection with” such proscribed conduct; and (3) resultant damages to the plaintiffs. However, that court held that the requisite “connection” between a defendant’s proscribed conduct and a plaintiff’s securities transaction can only be supplied by privity. This idea springs from Joseph v. Farnsworth Radio and TV Corp., 99 F.Supp. 701 (S.D.N.Y.1951) aff’d 198 F.2d 883 (2d Cir. 1952). In Joseph the court noted in dismissing the plaintiff’s complaint that “a semblance of privity between the vendor and purchaser of the security in connection with which the improper act, practice or course of business was invoked seems to be a requisite and it is entirely lacking here.” 99 F.Supp. at 706. If Joseph ever stood for the proposition that an allegation of privity is a sine qua non of 10b-5 pleading, see Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951), it was first undermined, see, e. g., Cochran v. Channing Corp., 211 F.Supp. 239 (S.D.N.Y.1962); and Brown v. Bullock, 194 F.Supp. 207, 229 (S.D.N. Y.) aff’d 294 F.2d 415 (2d Cir. 1961); and ultimately overruled by the Second Circuit both as to injunction actions brought by the SEC, see SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968) cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969); and private suits for damages see Heit v. Weitzen, 402 F.2d 909 (2d Cir. 1968) cert. denied 395 U.S." }, { "docid": "3877891", "title": "", "text": "not participate in the security transactions involved. Joseph v. Farnsworth Radio & Television Corp., 99 F.Supp. 701 (S.D.N.Y.1951), aff’d per curiam, 198 F.2d 883 (2d Cir. 1952). Cf. Fisch-man v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951); H. L. Green Co., Inc. v. Childree, 185 F.Supp. 95 (S.D. N.Y.1960). * * *” Plaintiffs’ attempt to distinguish the Howard complaint from this one because the former merely alleged circulation and dissemination of the offensive statements whereas the latter also alleges filing thereof with the SEC and the ASE, in so far as the § 10(b) and Rule 10b-5 aspect of the case are concerned, is an unimpressive and unpersuasive distinction without a difference. The Howard complaint, inter alia, disclosed : “The statements * * * were examined or certified, or both, by * * * Lybrand, Ross, [defendant-accountant firm] which knew or should have known that such * * * were incorrect and false and misleading. * * * The publication and dissemination of the material alleged * * * served to raise or prevent the market prices from declining of the securities of Belock * * * as the defendants well knew and intended and the defendants [named] benefited therefrom. * * * The * * * statements * * * were circulated * * * to influence and manipulate the prices of securities of Belock * * * and constituted the employment * * * of a device, scheme or artifice to defraud * * * which operated as a fraud or deceit upon plaintiff and all others similarly situated. * * * The defendants had or were charged with knowledge of the facts alleged * * *” As to those allegations in the Howard complaint Judge Cooper held: “In addition, the allegations of fraud are legally insufficient even under a liberal construction of the pleadings afforded to plaintiffs on a motion to dismiss. O’Neill v. Maytag, 230 F.Supp. 235, 239 (S.D.N.Y.) aff’d., 339 F.2d 764 (2d Cir. 1964); Weber v. C.M.P. Corp., 242 F.Supp. 321 (S.D.N.Y.1965). * * *” In the complaint here under consideration no" }, { "docid": "135652", "title": "", "text": "it js unlawful “to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit uP°n any person, in connection with the purchase or sale of any security.” Since its passage in 1942, Rule 10b-5 has received significant j'udicial amplification as a basis for civil liability, Fleischer, Federal Corporation Law: An Assessment, 78 Harv.L.Rev. 1146 (1965); Comment, Civil Liability Under Section iob and Rule 10B-5, 74 Yale L.J. 658 (1965); Ruder, Pitfalls in the Development of a Federal Law of Corporations, 59 Nw.L.Rev. 185 (1964). It is now set-tied that a derivative action may be brought on behalf of the corporation under the Rule, Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2 Cir.1951); Ruckle v. Roto American Corporation, 339 F.2d 24 (2 Cir.1964), that the corporate issuance of stock is a “sale” within the meaning of the Rule, Ruckle v. Roto American Corporation, supra at 27; Hooper v. Mountain States Securities Corp., 282 F.2d 195, 200-203 (5 Cir. 1960), and that appropriate operative facts may support both common law and federal causes of action. O’Neill v. Maytag, 339 F.2d 764 (2 Cir.1964). While recognizing the current trend of the authorities, defendants argue reasonable limits would be breached if the Rule is applied to a fraud upon a corporation when acting through its stockholders. The Court disagrees. The Rule provides civil redress for damage to a corporation resulting from deception in the disclosure of information which affects corporate decisions in the purchase and sale of securities. In Ruckle, members of the board of directors were deceived by the fraudulent failure to disclose information; here, stockholders were. Both cases involve fraud upon the decision-making body of the corporation. The result in both is the same— injury to the corporation. In this Court’s opinion the difference in the acting corporate body is not sufficient to warrant a result dissimilar to Ruckle. All information reasonably relevant to a rational investment must be disclosed to the decision-making body, whether that body be composed of directors, officers or shareholders of the corporation. See, Eagle v. Horvath, 241" }, { "docid": "20947957", "title": "", "text": "Ruckle v. Roto American Corp.: “There is, however, no support * * for the proposition that when a corporation is actually defrauded into issuing securities, a question to which we will presently turn our attention, it still cannot sue under Section 10(b) or Rule 10B-5. Barring suit by a corporation defrauded under those circumstances would, as a legal and practical matter, destroy any remedy against the perpetrator of the fraud. Suits by individual shareholders would either run afoul of privity requirements, cf. Joseph v. Farnsworth Radio & Television Corp., S.D.N.Y., 1951, 99 F.Supp. 701, affirmed, 2 Cir., 1952, 198 F.2d 883, or result in smaller recoveries based on loss to individual investments, which would also be difficult to compute. “Moreover, Birnbaum indicated that the dominant purpose of the promulgation of Rule 10B-5 was to extend federal protection to sellers as well as purchasers. It cannot be that the federal regulatory scheme is promoted by allowing a private person to sue, though the fraud complained of may relate not to the stock he sells but to the consideration he receives, see Errion v. Connell, 9 Cir., 1956, 236 F.2d 447, but not a defrauded corporation. In the latter case, it is far more likely that, as a result of the fraud perpetrated upon the issuing corporation, overvalued stock may reach the market. Of course, it was precisely the fear that such securities would be publicly distributed which prompted Congress to enact the federal securities laws.” As a second matter, the defendants raise the issue of whether there has been pleaded, with sufficient particularity, that the defendants have been guilty of acts of fraud, deception, or other affirmative misrepresentations, or omissions of material facts. The defendants cite O’Neill v. Maytag, supra, in support of the requirement of such allegations. It was said there that “At least where the duty allegedly breached is only the general duty existing among corporate officers, directors, and shareholders, no cause of action is stated under Rule 10b-5 unless there is an allegation of facts amounting to deception.” Upon examination of the complaint herein, the court is satisfied" }, { "docid": "23064029", "title": "", "text": "interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. Section 10(b) and Rule 10b-5 have been the focal point for a spectacular growth in the law governing civil liability for transactions in securities. This has been all the more remarkable because the Act does not explicitly provide a private civil remedy for violations of the section and Rule, and the Supreme Court has never held that one exists, although J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), impliedly suggests that it does. Nevertheless, it is now common ground that an injured investor does have a private cause of action under Rule 10b-5, e. g., Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951). However, various concepts have been utilized to limit liability under the sweeping language of the Rule, although none is specifically required by it. 3 L. Loss, Securities Regulation 1763-67 (2d ed. 1961). Thus, a requirement of privity was at first suggested, see Joseph v. Farnsworth Radio & Television Corp., 99 F.Supp. 701 (S.D.N.Y.1951), aff’d per curiam, 198 F.2d 883 (2d Cir. 1952), but has more recently been ignored, e. g., Cochran v. Channing Corp., 211 F.Supp. 239, 243-245 (S.D.N.Y.1962); see Texas Continental Life Ins. Co. v. Dunne, 307 F.2d 242 (6th Cir. 1962); Cooper v. North Jersey Trust Co., 226 F.Supp. 972, 978 (S.D.N.Y.1964). However, the search for limiting doctrine has continued. Thus, some courts have looked to see whether a plaintiff actually relied on the allegedly fraudulent statement, whether such reliance was reasonable, whether the fraud" }, { "docid": "6756328", "title": "", "text": "as part of a scheme by which a controlling shareholder of Newport was enabled to sell his controlling interest in the corporation to another corporation, at a premium, in violation of his fiduciary obligation. In affirming the lower court’s dismissal of the complaint for failure to state a claim, the court, at 464, said: “When Congress intended to protect the stockholders of a corporation against a breach of fiduciary duty by corporate insiders, it left no doubt as to its meaning. Thus Section 16(b) of the Act of 1934,15 U.S.C.A. § 78p (b), expressly gave the corporate issuer or its stockholders a right of action against corporate insiders using their position to profit in the sale or exchange of corporate securities. The absence of a similar provision in Section 10(b) strengthens the conclusion that that section was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X— 10B-5 extended protection only to the defrauded purchaser or seller. Since the complaint failed to allege that any of the plaintiffs fell within either class, the judgment of the district court was correct and is ac- cordingly affirmed.” [Emphasis added.] Accord, e. g., Hooper v. Mountain States Sec. Corp., 282 F.2d 195, 201 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S. Ct. 695, 5 L.Ed.2d 693 (1961); O’Neill v. Maytag, 230 F.Supp. 235, 239 (S.D. N.Y.), aff’d, 339 F.2d 764 (2d Cir. 1964); Cooper v. North Jersey Trust Co., 226 F.Supp. 972, 978 (S.D.N.Y.1964); New Park Mining Co. v. Cranmer, 225 F. Supp. 261, 266 (S.D.N.Y.1963); cf. Keers & Co. v. American Steel & Pump Corp., 234 F.Supp. 201, 203 (S.D.N.Y. 1964). The foregoing decisions illustrate (1) that the words “any person acquiring such security” in section 11(a) of the 1933 Act have been held to restrict suit under that section to actual purchasers of the securities, Fischman v. Raytheon Mfg. Co., supra; and (2) that the words “in connection with the purchase or sale” in section 10(b) of the" }, { "docid": "22067134", "title": "", "text": "1966); Eagle v. Horvath, 241 F.Supp. 341 (S.D.N.Y.1965); H. L. Green Co. v. Childree, 185 F.Supp. 95 (S.D.N.Y. 1960); Blau v. Hodgkinson, 100 F.Supp. 361 (S.D.N.Y.1951); Fleischer, “Federal Corporation Law”: An Assessment, 78 Harv.L.Rev. 1146, 1153 n. 37 (1965); 3 Loss, Securities Regulation 1469-71 (2d ed. 1961). . E. g., there was no deception in O’Neill v. Maytag, 339 F.2d 764 (2d Cir. 1964); in Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), plaintiffs had not sold their stock and were not being forced to; Barnett v. Anaconda Co., 238 F.Supp. 766 (S.D.N.Y. 1965), involved lack of causality between the deception and the injury. . This is the possible exception to the description of appellant’s rights referred to at p. 634 supra; appellee does not agree with the district court in this respect, arguing that “a short form merger in its nature cannot be attacked by a minority stockholder as fraudulent.” . Reference is made to an amicus brief of the Commission in National Supply Co. v. Leland Stanford Junior University, 134 F.2d 689 (9th Cir.), cert. denied, 320 U.S. 773, 64 S.Ct. 77, 88 L.Ed. 462 (1943), which construed the Securities Act of 1933. . Moreover, in SEC v. National Sec., Inc., 252 F.Supp. 623 (D.Ariz.1966), the Commission attacked a consolidation and reorganization under Rule 10b-5. . Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952); O’Neill v. Maytag, 339 F.2d 764 (2d Cir.1964); List v. Fashion Park, Inc., 340 F.2d 457 (2d Cir.), cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965). . It should also be pointed out that if appellant states a federal claim — as we hold he does — he also purports to represent those selling A stockholders who accepted the $1.25 per share public offer of August 1963, or the $2.50 public offer of January 1965, all of whom may have been injured, if the allegations of the complaint are true. . The" }, { "docid": "6756329", "title": "", "text": "purchaser or seller. Since the complaint failed to allege that any of the plaintiffs fell within either class, the judgment of the district court was correct and is ac- cordingly affirmed.” [Emphasis added.] Accord, e. g., Hooper v. Mountain States Sec. Corp., 282 F.2d 195, 201 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S. Ct. 695, 5 L.Ed.2d 693 (1961); O’Neill v. Maytag, 230 F.Supp. 235, 239 (S.D. N.Y.), aff’d, 339 F.2d 764 (2d Cir. 1964); Cooper v. North Jersey Trust Co., 226 F.Supp. 972, 978 (S.D.N.Y.1964); New Park Mining Co. v. Cranmer, 225 F. Supp. 261, 266 (S.D.N.Y.1963); cf. Keers & Co. v. American Steel & Pump Corp., 234 F.Supp. 201, 203 (S.D.N.Y. 1964). The foregoing decisions illustrate (1) that the words “any person acquiring such security” in section 11(a) of the 1933 Act have been held to restrict suit under that section to actual purchasers of the securities, Fischman v. Raytheon Mfg. Co., supra; and (2) that the words “in connection with the purchase or sale” in section 10(b) of the 1934 Act have been held to restrict suit under .that section to purchasers or sellers. Birnbaum v. Newport Steel Corp., supra. The above interpretations do not, of course, logically compel a similarly restrictive interpretation of the language in section 18(a) of the 1934 Act (“shall have purchased or sold”). But, the overall unitary scheme of regulation and the above-noted interrelationship of the three sections, — § 11(a) of the 1933 Act and §§ 10(b) and 18(a) of the 1934 Act — persuade this court to hold that a prerequisite of a claim under section 18 (a) of the 1934 Act is the fact that the plaintiff shall have purchased or sold securities and the injury for which damages are sought shall have been the direct result of such purchase or sale. See 3 Loss, Securities Regulation, 1751-54 (2d ed. 1961); 59 Yale L.J. 1120, 1128 (1950). Plaintiffs attempt to satisfy this requirement by the following sequence of propositions,: that this is a derivative action on behalf of the Company; that false statements which the defendants" }, { "docid": "6756438", "title": "", "text": "section 27 of the 1934 Act and section 44 of the 1940 Act. Defendants’ motion for summary judgment as to all claims based on sections 10(b), 14(a) and 18(a) of the 1934 Act and sections 7(a) (2), 7(a) (4), 20(a) and 34(b) of the 1940 Act is hereby granted by dismissal of all such claims, on the merits, for failure to state a claim upon which relief can be granted. The only claims asserted by plaintiffs which survive this motion for summary \"judgment are those brought under section 36 of the 1940 Act, as discussed at pages 25-27 of the Prior Decision. These claims were not challenged by defendants in this motion. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the court makes “an express determination” that there is no just reason for delay and the court expressly directs the entry of judgment on all claims dismissed above. In accordance with Rule 56(d) of the Federal Rules of Civil Procedure, the parties will submit an order, on five days’ notice, setting out those issues of fact, relative to the claims under section 36 of the 1940 Act, that remain to be tried. . Paragraph 5(iv) of the Complaint alleges that the price that the Company paid for the shares purchased by it exceeded the market price. Paragraph 6 (d) of the Complaint alleges that the effect of misleading statements to stoekholders, the basis for the cause of action under section 18(a), was to “depress the price of said stock below its real value based on the net assets of the Company,” i. e., liquidation value. There is no claim in this action, as there was in the recent cases of O’Neill v. Maytag, 230 F.Supp. 235 (S.D.N.Y.), aff’d, 339 F.2d 764 (2d Oir. 1964); Ruckle v. Roto American Corp., 339 F.2d 24 (2d Cir. 1964) ; and Kane v. Central American Mining & Oil, Inc., 235 F.Supp. 559, 564 (S.D.N.Y.1964), that the misleading statements caused the corporation to either purchase or sell stock at a price unfavorable to the corporation. Indeed, no such claim could be made" }, { "docid": "3877890", "title": "", "text": "on the contract having been already accomplished, the concealment thereof from the filed statements was for the purpose of further defrauding the Government by not disclosing the original malfeasance and not for the purpose of perpetrating a “misrepresentation or fraudulent practice usually associated with the sale or purchase of securities”. Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir. 1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). On the same operative facts as are presented here, Judge Cooper, in Howard v. Levine, D.C., 262 F.Supp. 643, dismissed the complaint in that action upon the grounds that “The instant complaint is fatally defective for the allegations here do not show the gravamen of defendants’ activities to be any wise ‘in connection with the purchase or sale of any security’ as those words have been construed in their statutory setting. Whatever fraud is alleged here (it is in bare skeletal form) is directed against the government, notwithstanding its possible incidental market impact. Furthermore, defendants or persons associated with them did not participate in the security transactions involved. Joseph v. Farnsworth Radio & Television Corp., 99 F.Supp. 701 (S.D.N.Y.1951), aff’d per curiam, 198 F.2d 883 (2d Cir. 1952). Cf. Fisch-man v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951); H. L. Green Co., Inc. v. Childree, 185 F.Supp. 95 (S.D. N.Y.1960). * * *” Plaintiffs’ attempt to distinguish the Howard complaint from this one because the former merely alleged circulation and dissemination of the offensive statements whereas the latter also alleges filing thereof with the SEC and the ASE, in so far as the § 10(b) and Rule 10b-5 aspect of the case are concerned, is an unimpressive and unpersuasive distinction without a difference. The Howard complaint, inter alia, disclosed : “The statements * * * were examined or certified, or both, by * * * Lybrand, Ross, [defendant-accountant firm] which knew or should have known that such * * * were incorrect and false and misleading. * * * The publication and dissemination of the material alleged * * * served to raise or" }, { "docid": "22067133", "title": "", "text": "the order dated April 6, 1966, is affirmed insofar as it denies leave to file a second amended complaint. The case is remanded for further proceedings consistent with this opinion. . Named as defendants, but only Beneficial was served. . The substance of this complaint is discussed at p. 636 infra. . The notice was dated April 7, 1966, but was stamped “Filed” on April 13, 1966. . See Rule 12, General Rules of United States District Courts for the Southern and Eastern Districts of New York, specifying which consent orders shall be signed by a clerk without submission to a judge; cf. Orange Theater Corp. v. Rayherstz Amusement Corp., 130 F.2d 185 (3d Cir. 1942). . A violation of subsection (b) is also alleged in general terms. . An alternative suggestion of amicus Securities and Exchange Commission argues for a broader reading of the law, discussed below. . See also Polakoff v. Delaware Steeplechase & Race Ass’n, 254 F.Supp. 574 (D. Del.1966); Simon v. New Haven Board & Carton Co., 250 F.Supp. 297 (D.Conn. 1966); Eagle v. Horvath, 241 F.Supp. 341 (S.D.N.Y.1965); H. L. Green Co. v. Childree, 185 F.Supp. 95 (S.D.N.Y. 1960); Blau v. Hodgkinson, 100 F.Supp. 361 (S.D.N.Y.1951); Fleischer, “Federal Corporation Law”: An Assessment, 78 Harv.L.Rev. 1146, 1153 n. 37 (1965); 3 Loss, Securities Regulation 1469-71 (2d ed. 1961). . E. g., there was no deception in O’Neill v. Maytag, 339 F.2d 764 (2d Cir. 1964); in Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), plaintiffs had not sold their stock and were not being forced to; Barnett v. Anaconda Co., 238 F.Supp. 766 (S.D.N.Y. 1965), involved lack of causality between the deception and the injury. . This is the possible exception to the description of appellant’s rights referred to at p. 634 supra; appellee does not agree with the district court in this respect, arguing that “a short form merger in its nature cannot be attacked by a minority stockholder as fraudulent.” . Reference is made to an amicus brief of the" }, { "docid": "23596759", "title": "", "text": "Television Corp., S.D.N.Y., 1951, 99 F.Supp. 701, 706, aff’d., 2 Cir., 1952, 198 F.2d 883, Ruckle v. Roto American Corp., 2 Cir., 1964, 339 F.2d 24, 28 (dictum), Buchholtz v. Renard, S.D.N.Y., 1960, 188 F.Supp. 888; Donovan, Inc. v. Taylor, N.D.Cal., 1955, 136 F.Supp. 552, 553; but see Brennan v. Midwestern United Life Ins. Co., N.D.Ind., 1966, 259 F.Supp. 673; cf. Cochran v. Channing Corp., S.D.N.Y., 1962, 211 F.Supp. 239; Texas Continental Life Ins. Co. v. Bankers Bond Co., W.D.Ky., 1960, 187 F.Supp. 14, rev’d on other grounds sub nom. Texas Continental Life Ins. Co. v. Dunne, 6 Cir., 1962, 307 F.2d 242. For a discussion of the necessity of a “semblance of privity” when stock is bought on the open market see 3 L.Loss, Securities Regulation 1767-71 (2d ed. 1961). . Strictly speaking, this may not have been so, but, again, we need not make the possibly complicated analysis. The assumption we have made is the most favorable to Kuehnert. . For cases involving unclean hands in labor disputes see Florida E. C. Ry. v. Brotherhood of Locomotive Engineers, 5 Cir., 1966, 362 F.2d 482; NLRB v. Fickett-Brown Mfg. Co., 5 Cir., 1944, 140 F.2d 883; Sanders v. De Lucia, S.D.N.Y., 1967, 266 F.Supp. 852, 857, aff’d, 2 Cir., 379 F.2d 550. . If the tippee here should be held liable to an innocent third party the most he could obtain from Ms insider friend would be contribution. 15 U.S.C. §§ 77k (f), 78i(e); 3 L.Loss, Securities Regulation 1737-40 (2d ed. 1961); Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L.J. 171, 178-81 (1933) (suggesting contribution should be on a purely pro rata basis); see deHaas v. Empire Pet. Co., D.Colo. 1968, 286 F.Supp. 809, 815-816. There is no right to indemnity between those in pari delicto. See Handel-Maatschappij H. Albert De Bary & Co. v. Faradyne Electronics Corp., S.D.N.Y., 1964, 37 F.R.D. 357; cf. Behar v. Savard, S.D.N.Y., 1958, 21 F.R.D. 367, 369-370; see generally, 3 L.Loss, Securities Regulation 1829-36 (2d ed. 1961). GODBOLD, Circuit Judge (dissenting) : Neither the statute nor the SEC Rules" } ]

[ { "docid": "21216205", "title": "", "text": "of his company area at 12:30 p. m. on August 21 and started home in his own automobile about an hour later. ■ The accident occurred at about 9:15 p. m., the same date, while Private Bettin was en route to his home near Storm Lake, Iowa. It is the government’s position that Bettin was not within the. scope of his employment as a soldier after he signed out of his company area for the reason that the government “did not know or care where he was going or what he was going to do.” Plaintiff, to the contrary, contends that Bettin was acting within the scope of his employment as an employee of the United States and the motion to remand should therefore be denied. The determination of whether a particular act is within the scope of employment of a soldier is made under applicable law of the state where the accident occurred. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955). Thus it is the Iowa law that must be applied. It should also be noted that “acting in line of duty” is not necessarily synonymous with “acting within the scope of his office or employment.” 28 U.S.C. § 2671. “Acting in line of duty” has a different meaning in connection with benefit claims of military personnel against the government. Acting in line of duty for purposes of the Federal Tort Claims Act means acting within the scope of employment under the applicable state law of respondeat superior. Merritt v. United States, 332 F.2d 397 (1st Cir. 1964); United States v. Eleazer, 177 F.2d 914 (4th Cir. 1949); United States v. Campbell, 172 F.2d 500, 503 (5th Cir. 1949). The United States is to be treated as any other private employer under the law of the state where the act or omission occurred. The controversy at hand arises from the government’s assertion that the army did not have any control over Bet-tin’s activities, that the army did not know or care where he was going or what he was going to do. Plaintiff," } ]

[ { "docid": "23681383", "title": "", "text": "within the scope of his employment when he negligently failed to control the dog, and that the United States was therefore liable. Damages were sought for Catherine’s future medical expenses, including psychiatric care, and her pain and suffering. After a bench trial, the district court awarded judgment to the United States, concluding that “[i]n keeping the animal which caused the tragic injuries to Catherine Lutz, Airman 1st Class Harris was not acting in the line of duty, but, rather, was acting for his own benefit.” The court made no finding as to whether Harris had been negligent. It did find that, had liability existed, reasonable damages would include $5,000 for psychiatric treatment, $25,-000 for past pain and suffering, and $10,000 for future pain, suffering, and emotional difficulties. II The FTCA constitutes a waiver of the Government’s immunity to suit only as to personal injuries caused by an “employee of the Government while acting within the scope of his office or employment . . .. ” 28 U.S.C. § 1346(b). Where the employee is a member of the military, the scope of employment “means acting in line of duty.” 28 U.S.C. § 2671. “Line of duty” is defined in turn by the applicable state law of respondeat superior. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam); Dornan v. United States, 460 F.2d 425, 427 (9th Cir. 1972). We defer to the district court’s interpretation’of state law, here the Montana law of respondeat superior. Allen v. Greyhound Lines, Inc., 656 F.2d 418, 421 (9th Cir. 1981). However, we are required to apply that interpretation to the historical facts to determine if the government employee acted within the scope of his employment. Where, as here, those facts are not in dispute, the determination of the scope of employment is a question of law, and thus freely reviewable by this court. Dornan, 460 F.2d at 429; see also Craft v. United States, 542 F.2d 1250, 1252 (5th Cir. 1976). Accordingly, we adopt the view of the district court that under Montana law, an employee who acts" }, { "docid": "362728", "title": "", "text": "addition to general allegations of negligence against the Air Force for not exercising enough control over Mr. Wilhelm or curing his alcoholism, plaintiff alleges that violation of certain regulations establishes defendant’s liability as a matter of law. The trial court ruled that even if there had been such a failure on the Air Force’s part, plaintiff (even after exhaustive briefing) could offer no evidence to indicate that such a failure to abide by regulations was a proximate cause of his injuries. This Court agrees. While the issue of proximate cause is normally left to the jury rather than decided on summary judgment, there are times where (as here) the lack of proximate cause between a defendant and an injury can lead to only one conclusion. See, e.g., Bushman v. Halm, 798 F.2d 651, 657 (3rd Cir.1986); Gans v. Mundy, 762 F.2d 338, 341 (3rd Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). As to plaintiffs general allegations of negligence on the part of gate guards and alcohol rehabilitation personnel, FTCA liability cannot attach unless the servicemember’s negligence occurred while he was acting within the scope of his employment. See Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989). This Court made clear in Bissell v. McElligott, 369 F.2d 115 (8th Cir.1966), cert. denied, 387 U.S. 917, 87 S.Ct. 2029, 18 L.Ed.2d 969 (1967) that the close relationship of the military to its employees “does not expand the legal doctrine of respondeat superior beyond scope of employment as applied in the applicable state law for determining the liability of a private employer.” Id. at 117— 18. Plaintiff adduces nothing except a bare allegation in his complaint to indicate that Mr. Wilhelm was working at the time of the accident. Summary judgment is appropriate when there is no genuine issue as to any material fact, and the prevailing party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing a district court’s order granting summary judgment," }, { "docid": "14880677", "title": "", "text": "judgment decision in favor of the United States. At oral argument before this court, the United States for the first time asserted that we lack jurisdiction over this appeal because, it said, the Westfall Act decision made the appeal of summary judgment moot. We ordered supplemental briefing on this issue. For the reasons explained below in Part II.B., we conclude that the district court’s Westfall decision regarding Mr. Garrick did not moot Mr. Fowler’s appeal. We first address the district court’s decision granting summary judgment to the United States. II. A. Summary Judgment. Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the movant 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 v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Sews., 165 F.3d 1321, 1326 (10th Cir.1999). Summary judgment is inappropriate if a rational factfinder could find in favor of the non-moving party based on the evidence presented. See Chasteen v. UNISIA JECS Corp., 216 F.3d 1212, 1216 (10th Cir.2000). “We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the court.” Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.2005). Under the FTCA, the government is liable only for tortious acts committed by employees “acting within the scope of [their] office or employment.” 28 U.S.C. § 1346(b)(1). “Scope of employment” is determined by the law of the place where the accident occurred. Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir.1993); see also 28 U.S.C. § 1346(b)(1). Accordingly, we examine Colorado respondeat superior law in this case, as did the district court, to determine if Mr. Garrick was within the scope of his employment when the car accident occurred. Under Colorado law, “the doctrine of respondeat superior is based on the theory that the employee acts on behalf of the employer when the employee is within the scope of his or" }, { "docid": "23532507", "title": "", "text": "approximately 7:30 a.m. on August 4, 1990, on Highway 30 in Carroll County, Iowa. Walsh was driving to his place of work in Ames, Iowa. Foster was driving from his home in Ames, Iowa, to a two-day Iowa National Guard training session in Denison, Iowa, scheduled to begin at 8:00 a.m. Each was driving his own vehicle. Walsh died as a result of the accident. Foster survived but sustained injuries. On November 18, 1991, more than a year later, plaintiff submitted a claim, on Standard Form 95, to the Iowa National Guard and the Office of the Adjutant General, at the Iowa National Guard Headquarters, for property damage, personal injury, and wrongful death, in the amount of $1,334,447.95. The Department of the Army denied her claim on January 22, 1992. Plaintiff then brought this action in federal district court under the FTCA. The government moved for summary judgment seeking dismissal on grounds that Foster was not acting within the scope of his employment with the National Guard at the time of the accident, and thus the FTCA does not apply. The district court granted the government’s motion. The district court reasoned that, in order for Foster to have been acting within the scope of his employment at the time of the accident, as required under 28 U.S.C. § 1346(b), he would have had to have been acting “in line of duty.” Id. § 2671. The district court noted that the term, “in line of duty,” is defined by applicable state law of respondeat superior. Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989) (citing Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam)); Farmer v. United States, 261 F.Supp. 750, 751 (S.D.Iowa 1966) (Farmer), aff'd, 400 F.2d 107 (8th Cir.1968). The district court then considered Iowa’s law of respondeat superior, as stated in Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986) (Jones), and concluded that, under Jones, Foster was not acting within the scope of his employment with the National Guard when the accident occurred; the government therefore could not be" }, { "docid": "23532512", "title": "", "text": "the employer under Jones. Plaintiff also notes that a separate Iowa Code provision states generally that the Iowa statutes should be liberally construed to promote their objectives and serve the ends of justice. The district court declined to apply Iowa Code § 29A.1(9) as the applicable state law of respondeat superior. The district court noted that to do so would be inconsistent with the FTCA’s provision that “[t]he United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The district court reasoned that relying upon Iowa Code § 29A.1(9), as urged by plaintiff, would expose the government to greater liability than a private individual under like circumstances. We agree. In Jones, the Iowa Supreme Court held that an employee acts within the scope of employment when the employer (1) has the right to direct the means and manner of doing work and (2) has the right of control over the employee. 387 N.W.2d at 355. The Iowa Supreme Court also commented in Jones that an employee generally is not acting within the scope of employment when driving to or from work. Id. Under the holding in Jones, therefore, a private employer would not be liable under the facts of the present case because Roster was traveling to National Guard training and, at that time, the government did not have the right to direct the means and manner of Roster’s travel or to control Roster. Id. at 355-56 (despite employee’s receipt of travel reimbursement, employee was not acting within scope of employment while returning home from job site following completion of work). Plaintiff also urges us to follow our decision on appeal in Farmer, 400 F.2d 107, which interpreted Iowa ease law preceding Jones. In Farmer, the government was sued under the FTCA following a car accident involving the plaintiff and an active duty member of the Army National Guard. The Guard member had just completed six months of training at Fort Leonard Wood, Missouri. He was traveling in his own car under orders to" }, { "docid": "891967", "title": "", "text": "suit for personal injuries caused by an employee of the Government. Washington v. United States, 868 F.2d 332, 333 (9th Cir.1989), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 536 (1989). To invoke jurisdiction under the Federal Tort Claims Act (“FTCA”), a plaintiff must show that her injury was 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.” 28 U.S.C. § 1346(b) (1994). See Sheridan v. United States, 487 U.S. 392, 398, 108 S.Ct. 2449, 2453-54, 101 L.Ed.2d 352 (1988); Washington, 868 F.2d at 333. The determination of “scope of employment” under the FTCA does no more than invoke state principles of respondeat superior. Lutz v. Secretary of the Air Force, 944 F.2d 1477, 1488 (9th Cir.1991); Lutz v. United States, 685 F.2d 1178, 1182 (9th Cir. 1982); United States v. McRoberts, 409 F.2d 195, 197 (9th Cir.1969) (per curiam), cert. denied, 396 U.S. 1014, 90 S.Ct. 551, 24 L.Ed.2d 505 (1970); see Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam). The law of the state where the act or omission occurred governs the inquiry into “scope of employment.” Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Dornan v. United States, 460 F.2d 425, 427 (9th Cir. 1972); see Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 590-91, 7 L.Ed.2d 492 (1962) (liability for an employee’s act of negligence is determined by the law of the state where the act occurred); Miller v. United States, 945 F.2d 1464, 1466 (9th Cir.1991) (actions against the United States under the FTCA are governed by the substantive law of the state where the allegedly tortious act or omission occurred). Military personnel act within the scope of their employment if they act “in line of duty.” 28 U.S.C. § 2671 (1994). “Line of duty” is defined also by the applicable state law of respondeat superior. Washington, 868 F.2d at 333. Under Nevada law, whether an employee was acting within" }, { "docid": "14884061", "title": "", "text": "denied, — U.S. -, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995). A summary judgment motion should be 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 of material fact and that the moving party is entitled to summary 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, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). An issue of fact is “genuine” if the record as a whole could lead a rational trier of fact to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is “material” if it might affect the outcome of the case under the governing law. Id. Like the district court, we review the evidence in a light most favorable to the non-moving party. Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir.1992). III. Discussion The principal question presented in this appeal concerns language in the FTCA that makes the United States’ vicarious liability for the negligence of its employees contingent on whether the employee acted in the “line of duty.” The FTCA waives the Government’s sovereign immunity for civil damages lawsuits against the United States 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). The statute defines “employee of the government” as including “members of the military or naval forces of the United States.” For military personnel, “[ajcting within the scope of ... employment” means acting in “line of duty.” Id. “Line of duty,” in turn, draws its meaning from the applicable state law of respondeat superior, Williams" }, { "docid": "20052015", "title": "", "text": "granted summary judgment to the government because “Maine’s drunk driving incident on April 13, 1985, was not in the line of duty and therefore the United States is not liable under the doctrine of respondeat superior.” He also denied Taber’s motion to amend his complaint holding that these claims would be barred by the Feres doctrine. The action proceeded against Maine, however. After a bench trial in which Maine appeared pro se, the district court found Maine liable for negligence and assessed Ta-ber’s damages at $300,000. A final judgment was entered and Taber appealed. In his appeal, Taber presses only his original claim that the government is vicariously liable for Maine’s negligence, and abandons his motion to amend his complaint. He argues that: (1) the district court erred in failing to apply the doctrine of respondeat superior to Maine’s drunk driving; and (2) the Feres doctrine does not bar this claim. We agree with both of Taber’s contentions. Accordingly, we reverse the district court’s judgment and remand the ease for further proceedings. DISCUSSION I. Respondeat Superior The FTCA allows civil actions against the government based on the negligent acts or omissions of its employees, see 28 U.S.C. § 1346(b), including those of members of the Armed Services who are acting “in the line of duty.” 28 U.S.C. § 2671. The courts have uniformly equated the FTCA’s “line of duty” language with the phrase “scope of employment,” as that concept is defined by the respondeat superior law of the jurisdiction in which the accident occurred. See McHugh v. University of Vermont, 966 F.2d 67, 75 n. 9 (2d Cir.1992) (citing McCall v. United States, 338 F.2d 589 (9th Cir.), cert. denied, 380 U.S. 974, 85 S.Ct. 1334, 14 L.Ed.2d 269 (1965)); Merritt v. United States, 332 F.2d 397, 398 (1st Cir.1964). Because the accident in this case happened in Guam, we must follow Guam’s law of respondeat superior. Since the law of Guam is anything but certain, however, that is easier said than done. Where the law of Guam is unclear, the Ninth Circuit, serving as Guam’s highest appellate court, see" }, { "docid": "23532509", "title": "", "text": "held liable under the FTCA. Slip op. at 14. Plaintiff appealed. II. Discussion We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of 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, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In the present case, the material facts are not genuinely disputed. The district court disposed of the case based upon a legal determination of whether, in light of the undisputed facts, Foster was acting “within the scope of his employment” with the National Guard at the time of the accident. Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir.1990). Plaintiff argues that the district court erred in its application of 28 U.S.C. § 2671, which provides that, in the case of a member of the National Guard, acting “within the scope of employment” for FTCA purposes means acting “in line of duty.” Plaintiff urges this court to rely upon the finding by the Army National Guard Personnel Center that Foster was acting “in the line of duty” at the time of the accident for purposes of Roster’s entitlement to certain benefits to reimburse losses arising out of the accident. However, the district court held, and we agree, that this finding, made for purposes of determining Roster’s right to receive benefits, is not relevant to a determination of whether Roster was acting “in line of duty” for purposes of ascertaining plaintiffs right to recover tort damages from the government under the FTCA. See Farmer, 261 F.Supp. at 751 (the term “acting in line of duty” has a different meaning in connection with benefit claims of military personnel against the government from the meaning used for FTCA purposes, which is based upon a “scope of" }, { "docid": "23532513", "title": "", "text": "also commented in Jones that an employee generally is not acting within the scope of employment when driving to or from work. Id. Under the holding in Jones, therefore, a private employer would not be liable under the facts of the present case because Roster was traveling to National Guard training and, at that time, the government did not have the right to direct the means and manner of Roster’s travel or to control Roster. Id. at 355-56 (despite employee’s receipt of travel reimbursement, employee was not acting within scope of employment while returning home from job site following completion of work). Plaintiff also urges us to follow our decision on appeal in Farmer, 400 F.2d 107, which interpreted Iowa ease law preceding Jones. In Farmer, the government was sued under the FTCA following a car accident involving the plaintiff and an active duty member of the Army National Guard. The Guard member had just completed six months of training at Fort Leonard Wood, Missouri. He was traveling in his own car under orders to report within twenty-four hours of departure to his home station at Storm Lake, Iowa, and return all items of clothing which had been issued to him. He was given a travel allowance for mileage and was still on active duty in a travel status. The district court held, and this court affirmed, that the government was liable under the FTCA for the Guard member’s negligence. 400 F.2d at 110-12. This court relied on pre-Jones Iowa cases which held that an employee acts within the scope of his or her employment, under the law of respondeat superior, when the acts are “done by the servant in furtherance [of the master’s business], and [are] such as may fairly be said to have been authorized by [the employer].” Id. at 110 (quoting Seybold v. Eisle, 154 Iowa 128, 134 N.W. 578, 581 (1912)). We agree with the district court’s decision to follow Jones, rather than Farmer, because Jones represents Iowa’s law of respondeat superior at the time the accident occurred. By contrast, Farmer interpreted older case law setting" }, { "docid": "23532510", "title": "", "text": "application of 28 U.S.C. § 2671, which provides that, in the case of a member of the National Guard, acting “within the scope of employment” for FTCA purposes means acting “in line of duty.” Plaintiff urges this court to rely upon the finding by the Army National Guard Personnel Center that Foster was acting “in the line of duty” at the time of the accident for purposes of Roster’s entitlement to certain benefits to reimburse losses arising out of the accident. However, the district court held, and we agree, that this finding, made for purposes of determining Roster’s right to receive benefits, is not relevant to a determination of whether Roster was acting “in line of duty” for purposes of ascertaining plaintiffs right to recover tort damages from the government under the FTCA. See Farmer, 261 F.Supp. at 751 (the term “acting in line of duty” has a different meaning in connection with benefit claims of military personnel against the government from the meaning used for FTCA purposes, which is based upon a “scope of employment” determination under applicable state law of respondeat superior). Plaintiff also argues that the district court should have interpreted “in line of duty” according to the definition of “on duty” in Iowa Code Ann. § 29A.1(9) (emphasis added) (West Supp.1994): “[o]n duty” means unit training assemblies, all other training, and service which may be required under state or federal law, regulations, or orders, and the necessary travel of an officer or enlisted person to the place of performance and return home after performance of that duty, but does not include federal service under 10 U.S.C. In support of the contention that Iowa Code § 29A.1(9) is relevant to the FTCA “line of duty” issue, plaintiff maintains that (1) nothing in Iowa law prohibits the use of statutory law in defining “in line of duty” under the FTCA, (2) Iowa Code § 29A.1(9) is “applicable State law of respondeat superi- or,” rather than Jones, and (3) Iowa Code § 29A.1(9) is persuasive authority that travel to and from work is within the “direction” and “control” of" }, { "docid": "14884062", "title": "", "text": "The principal question presented in this appeal concerns language in the FTCA that makes the United States’ vicarious liability for the negligence of its employees contingent on whether the employee acted in the “line of duty.” The FTCA waives the Government’s sovereign immunity for civil damages lawsuits against the United States 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). The statute defines “employee of the government” as including “members of the military or naval forces of the United States.” For military personnel, “[ajcting within the scope of ... employment” means acting in “line of duty.” Id. “Line of duty,” in turn, draws its meaning from the applicable state law of respondeat superior, Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam), taking into account the special factors and characteristics of military activity and discipline. See, e.g., Bettis v. United States, 635 F.2d 1144, 1147 (5th Cir. Unit B 1981); Hinson v. United States, 257 F.2d 178, 181 (5th Cir.1958). Since Williams’ alleged negligence occurred in Georgia, we look to Georgia’s law of respondeat superior. While respondeat superior is a slippery concept that eludes precise, universal definition, Georgia courts will hold an employer responsible for the conduct of its employee if the employee acted in the course of the employer’s business and with a desire to benefit the employer. See Green, 954 F.2d at 698 (noting that, under Georgia law, “[t]he tort of an employee is within the scope of his employment if it is done in furtherance of his employer’s business”); Wallace v. ARA Servs., Inc., 365 S.E.2d 461, 463 (Ga.Ct.App.1988); Wittig v. Spa Lady, Inc., 356 S.E.2d 665, 666 (Ga.Ct.App.1987); Southern Bell Tel & Tel Co. v. Sharara, 167 Ga.App." }, { "docid": "23532511", "title": "", "text": "employment” determination under applicable state law of respondeat superior). Plaintiff also argues that the district court should have interpreted “in line of duty” according to the definition of “on duty” in Iowa Code Ann. § 29A.1(9) (emphasis added) (West Supp.1994): “[o]n duty” means unit training assemblies, all other training, and service which may be required under state or federal law, regulations, or orders, and the necessary travel of an officer or enlisted person to the place of performance and return home after performance of that duty, but does not include federal service under 10 U.S.C. In support of the contention that Iowa Code § 29A.1(9) is relevant to the FTCA “line of duty” issue, plaintiff maintains that (1) nothing in Iowa law prohibits the use of statutory law in defining “in line of duty” under the FTCA, (2) Iowa Code § 29A.1(9) is “applicable State law of respondeat superi- or,” rather than Jones, and (3) Iowa Code § 29A.1(9) is persuasive authority that travel to and from work is within the “direction” and “control” of the employer under Jones. Plaintiff also notes that a separate Iowa Code provision states generally that the Iowa statutes should be liberally construed to promote their objectives and serve the ends of justice. The district court declined to apply Iowa Code § 29A.1(9) as the applicable state law of respondeat superior. The district court noted that to do so would be inconsistent with the FTCA’s provision that “[t]he United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The district court reasoned that relying upon Iowa Code § 29A.1(9), as urged by plaintiff, would expose the government to greater liability than a private individual under like circumstances. We agree. In Jones, the Iowa Supreme Court held that an employee acts within the scope of employment when the employer (1) has the right to direct the means and manner of doing work and (2) has the right of control over the employee. 387 N.W.2d at 355. The Iowa Supreme Court" }, { "docid": "23532516", "title": "", "text": "plaintiff highlights, among other things, that (1) Koster was subject to the provisions of the Iowa Code of Military Justice, (2) he was entitled to federal pay allowances and other state and federal benefits, (3) in order to qualify for federal benefits, he was required to take the most direct route to the training site and was, in fact, taking the most direct route, and (4) he was required to show up at the training with a proper haircut and in uniform and was, in fact, in uniform at the time of the accident. The district court observed that [Koster’s] employer had reserved no right to direct the means and manner of his travel, and had no right of control over him at the time of the collision. Sgt. Koster was merely “authorized,” not ordered, to travel by private vehicle; he received no travel reimbursement; and use of his private vehicle was not a condition of his employment. Slip op. at 12-13. The district court held, therefore, that the government had no right of control over Koster until he was to report for duty at 8:00 a.m. Id. at 13. Additionally, the district court considered this court’s statement in Bissell v. McElligott, 369 F.2d 115, 117-18 (8th Cir.1966) (Bissell) (applying Missouri law of respondeat superior), cert. denied, 387 U.S. 917, 87 S.Ct. 2029, 18 L.Ed.2d 969 (1967): [t]he unique over-all control which the military service has over its members does not expand the legal doctrine of respondeat superior beyond scope of employment as applied in the applicable state law for determining the liability of a private employer. See also Beatty v. United States, 983 F.2d 908, 909 (8th Cir.1993) (same). The district court found that the numerous factors highlighted by plaintiff as evidence of the National Guard’s right of direction and control over Roster were mere indications of the “unique over-all control which the military service has over its members” and not sufficient to create respondeat superior liability under Iowa state law, in light of Iowa’s law of respondeat superior as stated and applied in Jones. Slip op. at 13" }, { "docid": "23532517", "title": "", "text": "over Koster until he was to report for duty at 8:00 a.m. Id. at 13. Additionally, the district court considered this court’s statement in Bissell v. McElligott, 369 F.2d 115, 117-18 (8th Cir.1966) (Bissell) (applying Missouri law of respondeat superior), cert. denied, 387 U.S. 917, 87 S.Ct. 2029, 18 L.Ed.2d 969 (1967): [t]he unique over-all control which the military service has over its members does not expand the legal doctrine of respondeat superior beyond scope of employment as applied in the applicable state law for determining the liability of a private employer. See also Beatty v. United States, 983 F.2d 908, 909 (8th Cir.1993) (same). The district court found that the numerous factors highlighted by plaintiff as evidence of the National Guard’s right of direction and control over Roster were mere indications of the “unique over-all control which the military service has over its members” and not sufficient to create respondeat superior liability under Iowa state law, in light of Iowa’s law of respondeat superior as stated and applied in Jones. Slip op. at 13 (citing Bissell, 369 F.2d at 117-18). We agree with the district court’s legal analysis. The judgment of the district court is therefore affirmed. . The Honorable Donald E. O’Brien, Senior United States District Judge for the Northern District of Iowa. . 28 U.S.C. § 1346(b) provides in pertinent part: the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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. § 2671 provides in pertinent part: \"Acting within the scope of his office or employment”, in the case of a member of the military or naval forces of the United" }, { "docid": "23532506", "title": "", "text": "McMILLIAN, Circuit Judge. Anna M. Walsh (plaintiff), administrator of the estate of Thomas J. Walsh, appeals from a final order entered in the United States District Court for the Northern District of Iowa granting summary judgment in favor of the United States of America (government). Walsh v. United States, No. C92-3015, 1993 WL 729629 (N.D.Iowa Apr. 15, 1993) (order). Plaintiff brought this action in federal district court pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., seeking damages resulting from a fatal ear accident involving her son, Thomas Walsh, and Sergeant Leo Gerard Foster, who was traveling to an Iowa National Guard training session when the accident occurred. For reversal, plaintiff argues that the district court erred in holding that Foster was not acting within the scope of his employment with the National Guard when the accident occurred and therefore the government could not be held hable under the FTCA. For the reasons discussed below, we affirm the order of the district court. I. Background The accident occurred at approximately 7:30 a.m. on August 4, 1990, on Highway 30 in Carroll County, Iowa. Walsh was driving to his place of work in Ames, Iowa. Foster was driving from his home in Ames, Iowa, to a two-day Iowa National Guard training session in Denison, Iowa, scheduled to begin at 8:00 a.m. Each was driving his own vehicle. Walsh died as a result of the accident. Foster survived but sustained injuries. On November 18, 1991, more than a year later, plaintiff submitted a claim, on Standard Form 95, to the Iowa National Guard and the Office of the Adjutant General, at the Iowa National Guard Headquarters, for property damage, personal injury, and wrongful death, in the amount of $1,334,447.95. The Department of the Army denied her claim on January 22, 1992. Plaintiff then brought this action in federal district court under the FTCA. The government moved for summary judgment seeking dismissal on grounds that Foster was not acting within the scope of his employment with the National Guard at the time of the accident, and thus" }, { "docid": "891968", "title": "", "text": "350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam). The law of the state where the act or omission occurred governs the inquiry into “scope of employment.” Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Dornan v. United States, 460 F.2d 425, 427 (9th Cir. 1972); see Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 590-91, 7 L.Ed.2d 492 (1962) (liability for an employee’s act of negligence is determined by the law of the state where the act occurred); Miller v. United States, 945 F.2d 1464, 1466 (9th Cir.1991) (actions against the United States under the FTCA are governed by the substantive law of the state where the allegedly tortious act or omission occurred). Military personnel act within the scope of their employment if they act “in line of duty.” 28 U.S.C. § 2671 (1994). “Line of duty” is defined also by the applicable state law of respondeat superior. Washington, 868 F.2d at 333. Under Nevada law, whether an employee was acting within the scope of their employment for purposes of respondeat superior liability is generally a question for the trier of fact. National Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 584 P.2d 689, 692 (1978). However, when undisputed evidence exists concerning the employee’s status at the time of the tortious act or omission, the Court may resolve the issue as a matter of law. Evans v. Southwest Gas, 108 Nev. 1002, 842 P.2d 719, 721 (1992). See Molino v. Asher, 96 Nev. 814, 618 P.2d 878, 880 (1980) (record devoid of evidence showing tortious conduct was within the course of employment); Connell v. Carl’s Air Conditioning, 97 Nev. 436, 634 P.2d 673, 675 (1981) (24-hour on-call employee driving vehicle owned by him but paid for by employer was not acting within scope of employment at time of accident since lack of evidence indicated there were no emergencies employee was responding to). In Nevada, § 235 of the Restatement of Agency defines “scope of employment.” J.C. Penney Co. v. Gravelle, 62 Nev. 434, 155 P.2d 477, 482" }, { "docid": "9484779", "title": "", "text": "within given time constraints, and could not reasonably do so except by using his private automobile. He had used his own car to carry government documents on several occasions prior to the day of the accident as had his predecessor. The above facts are also apparent from the district court hearing record. In addition, there was testimony at the de novo hearing that base security personnel had been aware for some time that military personnel were using private automobiles on the base for government business. The facts belie any notion that Proiet-ti was on his own “frolic.” He was transporting government documents directly from one building to another. “Deviation” is not at issue. The only issue is whether Proietti’s use of his private automobile, without express authority, and in fulfillment of both government and personal purposes, was within or without “the scope of his office or employment” within the meaning of Section 2679. This issue can be decided as a matter of law. Cf. Chapin v. United States, 258 F.2d 465, 467 (9th Cir. 1958). In resolving the “scope of employment” question presented in a suit instituted under the Federal Tort Claims Act [28 U.S.C. §§ 1346(b) & 2674 (1970)], a federal court “must apply the respondeat superior principles of the state wherein the alleged tort was committed. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) . . . .” United States v. McRoberts, 409 F.2d 195, 197 (9th Cir. 1969). Since 28 U.S.C. § 2671 provides, “as used in this chapter [such chapter including §§ 2671 — 80] and sections 1346(b) and 2401(b) of this title,” and then proceeds to define, inter alia, “ ‘Acting within the scope of his office or employment,’ ” it is reasonable to conclude that the rule of Williams, supra, applies whether the action is brought under section 1346, 2674, or 2679. The Attorney General so concluded and proceeded to apply the law of California. Our inquiry is whether the California courts would hold, if this case were before them, that Proietti was acting within the scope of" }, { "docid": "23532508", "title": "", "text": "the FTCA does not apply. The district court granted the government’s motion. The district court reasoned that, in order for Foster to have been acting within the scope of his employment at the time of the accident, as required under 28 U.S.C. § 1346(b), he would have had to have been acting “in line of duty.” Id. § 2671. The district court noted that the term, “in line of duty,” is defined by applicable state law of respondeat superior. Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989) (citing Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam)); Farmer v. United States, 261 F.Supp. 750, 751 (S.D.Iowa 1966) (Farmer), aff'd, 400 F.2d 107 (8th Cir.1968). The district court then considered Iowa’s law of respondeat superior, as stated in Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986) (Jones), and concluded that, under Jones, Foster was not acting within the scope of his employment with the National Guard when the accident occurred; the government therefore could not be held liable under the FTCA. Slip op. at 14. Plaintiff appealed. II. Discussion We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of 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, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In the present case, the material facts are not genuinely disputed. The district court disposed of the case based upon a legal determination of whether, in light of the undisputed facts, Foster was acting “within the scope of his employment” with the National Guard at the time of the accident. Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir.1990). Plaintiff argues that the district court erred in its" }, { "docid": "23532514", "title": "", "text": "report within twenty-four hours of departure to his home station at Storm Lake, Iowa, and return all items of clothing which had been issued to him. He was given a travel allowance for mileage and was still on active duty in a travel status. The district court held, and this court affirmed, that the government was liable under the FTCA for the Guard member’s negligence. 400 F.2d at 110-12. This court relied on pre-Jones Iowa cases which held that an employee acts within the scope of his or her employment, under the law of respondeat superior, when the acts are “done by the servant in furtherance [of the master’s business], and [are] such as may fairly be said to have been authorized by [the employer].” Id. at 110 (quoting Seybold v. Eisle, 154 Iowa 128, 134 N.W. 578, 581 (1912)). We agree with the district court’s decision to follow Jones, rather than Farmer, because Jones represents Iowa’s law of respondeat superior at the time the accident occurred. By contrast, Farmer interpreted older case law setting forth a different standard. We cannot say with any certainty that the outcome in Farmer would have been the same had Jones been decided prior to Farmer. Moreover, Farmer is factually distinguishable from the present case because, among other things, the Guard member in Farmer was on active duty in a travel status at the time his accident occurred. 400 F.2d at 110. We therefore decline to apply Farmer to the present case. Finally, plaintiff maintains that, even if the district court correctly relied on Jones as setting forth the controlling state law of respondeat superior, the district court nevertheless erred in applying the holding in Jones to the facts of the present case. Plaintiff argues that the National Guard did have the right to direct the means and manner of Koster’s travel to the National Guard training when the accident occurred, and did have the right to exercise control over him at that time, regardless of whether or not the National Guard actually exercised such direction and control. As evidence that such rights existed," } ]

[ { "docid": "4688470", "title": "", "text": "F.2d 1004 (2d Cir.1933). Second, it is more likely, considering the Act in totality, that this language, like the other references to the federal courts, was intended otherwise. The words stressed by the Customers, referring to the court “which, save for such agreement, would have jurisdiction,” in all likelihood responded to an antiquated and arcane principal of the common law. At the time the Act was passed, a claim for specific performance of an agreement to arbitrate would not be enforced by the federal courts because such a clause was construed as an agreement to “oust” the court of jurisdiction. See Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 985 (2d Cir. 1942). The Senate Report on the Act explained its purpose as to overturn the “very old law ... that if an action at law were brought on the contract containing the agreement to arbitrate, such agreement could not be pleaded in bar of the action.” S.Rep. No. 536, 68th Cong., 1st Sess. 2 (1924). The Act addressed the inequity that was perceived to exist where only one party to an arbitration agreement was a citizen of a state where such agreements were enforceable; the other party to the agreement at his option could either hold the first to arbitration by bringing suit in state court or defeat the agreement, at any time, by commencing suit under diversity jurisdiction in federal court. See Arbitration of Interstate Commercial Disputes, Joint Hearings S. 1005 on H.R. 646 and before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess. 16, 35 (1924) (Statements of Julius Henry Cohen and W.W. Nichols). Thus, it has been held under § 4 that when federal jurisdiction is otherwise present by reason of diversity or admiralty, the fact that the plaintiff is seeking affirmative relief under an agreement to arbitrate does not divest the court of jurisdiction. See The Anaconda v. American Sugar Refining Co., 322 U.S. 42, 44-45, 64 S.Ct. 863, 864-65, 88 L.Ed. 1117 (1944). The likely intended meaning of the “save for” clause is that the court which is" } ]

[ { "docid": "21701222", "title": "", "text": "of the Act’s exception permitting courts to refuse to enforce arbitration agreements on grounds that exist “for the revocation of any contract.” 9 U. S. C. §2 (emphasis added). The majority agrees. Ante, at 343. B The Discover Bank rule is also consistent with the basic “purpose behind” the Act. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219 (1985). We have described that purpose as one of “ensuring] judicial enforcement” of arbitration agreements. Ibid.; see also Marine Transit Corp. v. Dreyfus, 284 U. S. 263, 274, n. 2 (1932) (“ ‘The purpose of this bill is to make valid and enforcible agreements for arbitration’ ” (quoting H. R. Rep. No. 96, 68th Cong, 1st Sess., 1 (1924); emphasis added)); 65 Cong. Rec. 1931 (1924) (“It creates no new legislation, grants no new rights, except a remedy to enforce an agreement in commercial contracts and in admiralty contracts”). As is well known, prior to the federal Act, many courts expressed hostility to arbitration, for example, by refusing to order specific performance of agreements to arbitrate. See S. Rep. No. 536, 68th Cong., 1st Sess., 2 (1924). The Act sought to eliminate that hostility by placing agreements to arbitrate “ ‘upon the same footing as other contracts.’” Scherk v. Alberto-Culver Co., 417 U. S. 506, 511 (1974) (quoting H. R. Rep. No. 96, at 2; emphasis added). Congress was fully aware that arbitration could provide procedural and cost advantages. The House Report emphasized the “appropriate[ness]” of making arbitration agreements enforceable “at this time when there is so much agitation against the costliness and delays of litigation.” Id., at 2. And this Court has acknowledged that parties may enter into arbitration agreements in order to expedite the resolution of disputes. See Preston v. Ferrer, 552 U. S. 346, 357 (2008) (discussing “prime objective of an agreement to arbitrate”). See also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 628 (1985). But we have also cautioned against thinking that Congress’ primary objective was to guarantee these particular procedural advantages. Rather, that primary objective was to secure the “enforcement”" }, { "docid": "22714082", "title": "", "text": "now hold that we have appellate jurisdiction and affirm. Appellant devotes the bulk of its argument to convincing us that the Court of Appeal erred in interpreting the choice-of-law clause to mean that the parties had incorporated the California rules of arbitration into their arbitration agreement. See Brief for Appellant 66-96. Appellant acknowledges, as it must, that the interpretation of private contracts is ordinarily a question of state law, which this Court does not sit to review. See id., at 26, 29. But appellant nonetheless maintains that we should set aside the Court of Appeal’s interpretation of this particular contractual provision for two principal reasons. Appellant first suggests that the Court of Appeal’s construction of the choice-of-law clause was in effect a finding that appellant had “waived” its “federally guaranteed right to compel arbitration of the parties’ dispute,” a waiver whose validity must be judged by reference to federal rather than state law. Id., at 17, 30-36. This argument fundamentally misconceives the nature of the rights created by the FAA. The Act was designed “to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate,” Byrd, supra, at 219-220, and place such agreements “ ‘upon the same footing as other contracts,’” Scherk v. Alberto-Culver Co., 417 U. S. 506, 511 (1974) (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924)). Section 2 of the Act therefore declares that a written agreement to arbitrate in any contract involving interstate commerce or a maritime transaction “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U. S. C. § 2, and § 4 allows a party to such an arbitration agreement to “petition any United States district court... for an order directing that such arbitration proceed in the manner provided for in such agreement.” But §4 of the FAA does not confer a right to compel arbitration of any dispute at any time; it confers only the right to obtain an order directing that “arbitration proceed in the manner provided for in [the parties’]" }, { "docid": "9498126", "title": "", "text": "had not alleged a violation of the Lanham Act, and we refused to hold that a federal question existed merely because the subject of the contract dispute was a federally-created property interest. Id. Significantly, however, we reached this conclusion only after examining the underlying controversy between the parties. Id. at 619. Adhering to the Westmoreland doctrine would mean stopping the Gibraltar analysis after a realization that the parties were neither diverse nor making a claim in admiralty. This we cannot do. Gibraltar indicates, therefore, that we assume the plain text of § 4 requires us to ask whether any basis for subject matter jurisdiction would exist for the case in the absence of the arbitration agreement. III. A federal court may therefore hear a § 4 petition to compel arbitration if, but for the arbitration agreement, subject matter jurisdiction over the case would otherwise exist by virtue of a properly invoked federal question in the underlying dispute. The question remains, however, whether such a federal question exists in this case. We reserve the resolution of that question for the district court. We recognize that challenges to a federal court’s subject matter jurisdiction can be brought at any stage in litigation. Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir.2003). However, this case presents several legally complex and partially fact-bound inquiries which must be answered prior to resolving the subject matter jurisdiction question. We therefore think it prudent to remand these issues to the lower court, so that it can decide them in the first instance. VACATED AND REMANDED . Discover counters this argument by explaining that Ms. Vaden's account was \"automatically” upgraded to a Discover Platinum account in June of 1999. Ms. Vaden contends, though, that she was not asked to write her check to Discover Platinum until November of 1999. . We are unpersuaded by the argument adopted by some courts that the \"save for” language was included by Congress for the purpose of responding to an \"antiquated and arcane principal of the common law” where a claim for specific performance of an arbitration agreement" }, { "docid": "9498127", "title": "", "text": "that question for the district court. We recognize that challenges to a federal court’s subject matter jurisdiction can be brought at any stage in litigation. Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir.2003). However, this case presents several legally complex and partially fact-bound inquiries which must be answered prior to resolving the subject matter jurisdiction question. We therefore think it prudent to remand these issues to the lower court, so that it can decide them in the first instance. VACATED AND REMANDED . Discover counters this argument by explaining that Ms. Vaden's account was \"automatically” upgraded to a Discover Platinum account in June of 1999. Ms. Vaden contends, though, that she was not asked to write her check to Discover Platinum until November of 1999. . We are unpersuaded by the argument adopted by some courts that the \"save for” language was included by Congress for the purpose of responding to an \"antiquated and arcane principal of the common law” where a claim for specific performance of an arbitration agreement would oust the court of jurisdiction. Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F.Supp. 957, 961-62 (S.D.N.Y.1988). As the authors of a respected federal arbitration treatise explain, this theory is historically inaccurate. See 1 MacNeil, Speidel & Stipanowich, Federal Arbitration Law § 9.2.3 (1995). For, the \"save for\" language is found only in the FAA, not in any of the state arbitration reform acts upon which the FAA was based. Those states suffered from the same common law ouster problem. Had the \"save for” language been meant to solve the ouster problem, \"similar language would have been found in the 1920 New York Act, the 1923 New Jersey Act, and the old UAA, all drafted by the same reformers who drafted the FAA.” Id. at 9:18. . Several such inquiries suggest themselves. First, in order to decide if a federal question exists, the court must decide whether Ms. Vaden’s state law counterclaims are completely preempted by the Federal Deposit Insurance Act. See 12 U.S.C. § 1831d(a) (2000). This decision may be affected by the" }, { "docid": "20646540", "title": "", "text": "district courts in our Circuit, as well as the decisions of our sister circuits. See 100 F.3d at 267 (citing cases). In chief, Westmoreland accepted the reasoning of Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F.Supp. 957 (S.D.N.Y. 1988), a decision penned by Judge Leval while still on the district court. Valenzuela Bock held, and Westmoreland agreed, that the “save for” clause in § 4 constituted a congressional repudiation of the “ouster theory” — an “antiquated common law principle that an agreement to arbitrate would oust the federal courts of jurisdiction.” Westmoreland, 100 F.3d at 268 (citing Valenzuela Bock, 696 F.Supp. at 961-62). Additionally, West-moreland noted that the provisions lacking § 4’s unique language “have not been interpreted to confer jurisdiction on the federal courts” and that it “would produce an odd distinction” if “a petition to compel arbitration could be brought in federal court, but a petition under FAA §§ 9 or 10 to confirm or vacate the arbitration award in the same dispute could not.” Id. Westmoreland again relied on Valenzuela Bock’s reasoning: This distinction would truly be “bizarre,” because “[t]he interest of the federal court in determining whether the arbitration award was entered in manifest disregard of the federal law ... would seem to be far greater than the federal interest in seeing that the claims could be arbitrated.” Id. (alterations in original) (quoting Valenzuela Bock, 696 F.Supp. at 963). Four years later, a second panel of this Court was asked to determine whether it possessed federal-question jurisdiction over a § 10 petition. It rejected the look-through approach for such petitions squarely and exclusively on the basis of Westmoreland. See Greenberg, 220 F.3d at 26. In doing so, it reiterated Westmore-land’s reliance on the “ouster theory” explanation and then held that “[t]he holding in Westmoreland logically extends to motions to vacate an arbitration award under § 10 of FAA,” additionally citing the holdings of two other circuits and two district courts in our Circuit. Id. The Greenberg panel reasoned: As with a motion under § 4, the only federal rights that a motion under § 10" }, { "docid": "22110006", "title": "", "text": "at 57. The relevant “controversy between the parties,” Vaden insists, is simply and only the parties’ discrete dispute over the arbitrability of their claims. She relies, quite reasonably, on the fact that a §4 petition to compel arbitration seeks no adjudication on the merits of the underlying controversy. Indeed, its very purpose is to have an arbitrator, rather than a court, resolve the merits. A § 4 petition, Vaden observes, is essentially a plea for specific performance of an agreement to arbitrate, and it thus presents principally contractual questions: Did the parties validly agree to arbitrate? What issues does their agreement encompass? Has one party dishonored the agreement? Vaden’s argument, though reasonable, is difficult to square with the statutory language. Section 4 directs courts to determine whether they would have jurisdiction “save for [the arbitration] agreement.” How, then, can a dispute over the existence or applicability of an arbitration agreement be the controversy that counts? The “save for” clause, courts espousing the view embraced by Vaden respond, means only that the “antiquated and arcane” ouster notion no longer holds sway. Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F. Supp. 957, 961 (SDNY 1988). Adherents to this “ouster” explanation of § 4’s language recall that courts traditionally viewed arbitration clauses as unworthy attempts to “oust” them of jurisdiction; accordingly, to guard against encroachment on their domain, they refused to order specific enforcement of agreements to arbitrate. See H. R. Rep. No. 96, 68th Cong., 1st Sess., 1-2 (1924) (discussed in Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219-220, and n. 6 (1985)). The “save for” clause, as comprehended by proponents of the “ouster” explanation, was designed to ensure that courts would no longer consider themselves ousted of jurisdiction and would therefore specifically enforce arbitration agreements. See, e. g., Westmoreland, 100 F. 3d, at 267-268, and n. 6 (adopting the “ouster” interpretation advanced in Drexel Burnham Lambert, 696 F. Supp., at 961-963); Strong, 485 F. 3d, at 631 (Marcus, J., specially concurring) (reading §4’s “save for” clause “as instructing the court to ‘set aside’ not the arbitration agreement...," }, { "docid": "20646543", "title": "", "text": "for access to a federal forum an independent jurisdictional basis over the parties’ dispute.” Vaden, 556 U.S. at 59, 129 S.Ct. 1262 (alterations and internal quotation marks omitted). Next, it laid out the general rules of federal-question jurisdiction under 28 U.S.C. § 1331 — the “independent jurisdictional basis” relied upon by the petitioner. Id. The Court then announced that “[a] federal court may ‘look through’ a § 4 petition to determine whether it is predicated on an action that ‘arises under’ federal law.” Id. at 62, 129 S.Ct. 1262. This rule was, the Court held, driven by the text of § 4: The phrase “save for [the arbitration] agreement” indicates that the district court should assume the absence of the arbitration agreement and determine whether it “would have jurisdiction under title 28” without it. Jurisdiction over what? The text of § 4 refers us to “the controversy between the parties!,]” ... [which is] most straightforwardly read to mean the “substantive conflict between the parties.” Id. (first alteration in original) (citations omitted) (quoting § 4). The Court noted that a majority of the federal courts of appeals had rejected such an approach but concluded that the “ouster theory” explanation on which most relied was not persuasive: if any lingering ouster doctrine existed, section 2 of the Act, which declared all arbitration agreements valid and enforceable, “directly attended to the problem.” Id. at 64, 129 S.Ct. 1262. The Court then noted that rejecting the look-through approach had “curious practical consequences”: It would permit a federal court to entertain a § 4 petition only when a federal-question suit is already before the court, when the parties satisfy the requirements for diversity-of-citizenship juris diction, or when the dispute over arbi-trability involves a maritime contract. Id. at 65, 129 S.Ct. 1262 (citing Westmoreland, 100 F.3d at 268-69). In other words, if a federal-question suit was filed in federal court, the court could compel arbitration — but if the suit had not already been filed, it could not. Id. This approach “ ‘create[d] a totally artificial distinction’ based on whether a dispute is subject to pending" }, { "docid": "22110005", "title": "", "text": "arbitration] agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties.” 9 U. S. C. §4. The phrase “save for [the arbitration] agreement” indicates that the district court should assume the absence of the arbitration agreement and determine whether it “would have jurisdiction under title 28” without it. See 396 F. 3d, at 369, 372 (ease below). Jurisdiction over what? The text of §4 refers us to “the controversy between the parties.” That phrase, the Fourth Circuit said, and we agree, is most straightforwardly read to mean the “substantive conflict between the parties.” Id., at 870. See also Moses H. Cone, 460 U. S., at 25, n. 32 (noting in dicta that, to entertain a § 4 petition, a federal court must have jurisdiction over the “underlying dispute”). The majority of Courts of Appeals to address the question, we acknowledge, have rejected the “look through” approach entirely, as Vaden asks us to do here. See supra, at 57. The relevant “controversy between the parties,” Vaden insists, is simply and only the parties’ discrete dispute over the arbitrability of their claims. She relies, quite reasonably, on the fact that a §4 petition to compel arbitration seeks no adjudication on the merits of the underlying controversy. Indeed, its very purpose is to have an arbitrator, rather than a court, resolve the merits. A § 4 petition, Vaden observes, is essentially a plea for specific performance of an agreement to arbitrate, and it thus presents principally contractual questions: Did the parties validly agree to arbitrate? What issues does their agreement encompass? Has one party dishonored the agreement? Vaden’s argument, though reasonable, is difficult to square with the statutory language. Section 4 directs courts to determine whether they would have jurisdiction “save for [the arbitration] agreement.” How, then, can a dispute over the existence or applicability of an arbitration agreement be the controversy that counts? The “save for” clause, courts espousing the view embraced by Vaden respond, means only that the “antiquated and arcane” ouster" }, { "docid": "21701221", "title": "", "text": "waivers where they satisfy general unconscionability standards. See, e. g., Walnut Producers of Cal. v. Diamond Foods, Inc., 187 Cal. App. 4th 634, 647-650, 114 Cal. Rptr. 3d 449, 459-462 (2010); Arguelles-Romero v. Superior Court, 184 Cal. App. 4th 825, 843-845, 109 Cal. Rptr. 3d 289, 305-307 (2010); Smith v. Americredit Financial Servs., Inc., No. 09cv1076, 2009 WL 4895280 (SD Cal., Dec. 11, 2009); cf. Provencher, supra, at 1201 (considering Discover Bank in choice-of-law inquiry). And even when they fail, the parties remain free to devise other dispute mechanisms, including informal mechanisms, that, in context, will not prove unconscionable. See Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 479 (1989). II A The Discover Bank rule is consistent with the federal Act’s language. It “applies equally to class action litigation waivers in contracts without arbitration agreements as it does to class arbitration waivers in .contracts with such agreements.” 36 Cal. 4th, at 165-166, 113 P. 3d, at 1112. Linguistically speaking, it falls directly within the scope of the Act’s exception permitting courts to refuse to enforce arbitration agreements on grounds that exist “for the revocation of any contract.” 9 U. S. C. §2 (emphasis added). The majority agrees. Ante, at 343. B The Discover Bank rule is also consistent with the basic “purpose behind” the Act. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219 (1985). We have described that purpose as one of “ensuring] judicial enforcement” of arbitration agreements. Ibid.; see also Marine Transit Corp. v. Dreyfus, 284 U. S. 263, 274, n. 2 (1932) (“ ‘The purpose of this bill is to make valid and enforcible agreements for arbitration’ ” (quoting H. R. Rep. No. 96, 68th Cong, 1st Sess., 1 (1924); emphasis added)); 65 Cong. Rec. 1931 (1924) (“It creates no new legislation, grants no new rights, except a remedy to enforce an agreement in commercial contracts and in admiralty contracts”). As is well known, prior to the federal Act, many courts expressed hostility to arbitration, for example, by refusing to order specific performance of agreements" }, { "docid": "715782", "title": "", "text": "Byrd, 470 U.S. 213, 219-20, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) ; see also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Scherk v. Alberto-Culver Co., 417 U.S. 506, 510-11 & n. 4, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974); Jenkins v. First American Cash Advance of Ga., LLC, 400 F.3d 868, 874 (11th Cir.2005) (purpose of FAA was to reverse judicial hostility to arbitration agreements and put them on equal footing with other contracts); Commercial Metals, 577 F.2d at 266 (“At common law, agreement in contracts to submit disputes arising therefrom to arbitration, for various reasons, were not specifically enforced by courts.... ”). Section 2, the FAA’s primary substantive provision, provides that written arbitration agreements shall be enforceable “save upon such grounds as exist ... for the revocation of any contract.” 9 U.S.C. § 2. The Supreme Court has construed this “saving clause” as reflecting the Act’s overall purpose “to make arbitration agreements as enforceable as other contracts, but not more so.” Prima Paint, 388 U.S. at 404 n. 12, 87 S.Ct. 1801. Indeed, a panel of the former Fifth Circuit had occasion to hold that “the effect of Section 2 ... is simply to remove the previously viable defenses of the party opposing arbitration.” Comviercial Metals, 577 F.2d at 266. I think that the “saving clause” of § 4 should be read, just like that of § 2, against the background of the Act’s overall purpose of overturning the judiciary’s longstanding refusal to enforce agreements to arbitrate. Therefore, I would read § 4’s saving clause as providing that a party seeking to compel arbitration may petition any court which, but for the common law rule that arbitration clauses oust courts of jurisdiction, “would have [subject matter] jurisdiction ... [over] a suit arising out of the controversy between the parties.” As for the “controversy between the parties,” this is perhaps the most ambiguous phrase in a section of the FAA replete with them. The Fourth Circuit’s reading of the “controversy between the parties” as a reference to the controversy to" }, { "docid": "715780", "title": "", "text": "369. As for the “controversy between the parties,” the Fourth Circuit found that the “natural” reading of this phrase is as a reference to the dispute to be arbitrated. Id. at 370. As I read Vaden (and, for that matter, footnote 11 of Tamiami III), the relevant portion of § 4 could be rewritten as follows: A party seeking to compel arbitration may petition any district court which, putting aside the arbitration agreement and the motion to compel under it, would have subject matter jurisdiction over the dispute the party seeks to arbitrate if the party had instead brought that dispute before the district court to be adjudicated. I read both phrases of § 4 differently. As for the saving clause, I read it as instructing the court to “set aside” not the arbitration agreement itself or the suit before it to specifically enforce that agreement, but merely the previous judicial hostility to arbitration agreements. I thus agree with several other courts in reading the saving clause as providing simply that “a court which is otherwise vested of jurisdiction of the suit would not be divested [of jurisdiction] by the arbitration agreement and may proceed to order arbitration, contrary to prior precedent.” Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F.Supp. 957, 963 (S.D.N.Y.1988); see also Westmoreland Capital Corp. v. Findlay, 100 F.3d 263, 267-68 & n. 6 (2d Cir.1996) (adopting the interpretation of the Drexel Burnham court); Prudential-Bache Sec., Inc. v. Fitch, 966 F.2d 981, 988 (5th Cir.1992) (same); Klein v. Drexel Burnham Lambert, Inc., 737 F.Supp. 319, 323 n. 12 (E.D.Pa.1990) (same). This interpretation of § 4’s saving clause is fully in keeping with both the FAA’s overall purpose and § 2’s similar saving clause. For a long time, courts would not specifically enforce arbitration agreements, on the self-serving theory that agreements to arbitrate ousted courts of jurisdiction. Indeed, the legislative history of the FAA makes unmistakably clear that its purpose was “to ensure judicial enforcement of privately made agreements to arbitrate” by “overruling] the judiciary’s longstanding refusal to enforce agreements to arbitrate.” Dean Witter Reynolds Inc. v." }, { "docid": "15883449", "title": "", "text": "exception to limitation; the slot charters stipulated to it below. See Appellees' Br. at 24. . It appears that the parties in Quarrington Court did not raise, and hence this Court did not consider, whether the vessel owner’s warranty of seaworthiness entitled the charterer to invoke the personal contract exception so as to avoid limitation. . Quarrington Court rests upon the particular circumstances therein and should not be read to preclude an owner from pursuing arbitration under its charter party whenever it has already filed a complaint seeking limitation. In Afram Carriers, Inc. v. Moeykens, 145 F.3d 298 (5th Cir.1998), the Fifth Circuit noted its disagreement with what it considered to be outdated reasoning in Quarrington Court: The Quarrington Court was decided in an era in which forum-selection and arbitration clauses were disfavored by the courts because they were thought to \"oust their jurisdiction.” In those days, nearly any public policy could undo such a clause.... By 1972, the Supreme Court had rejected the “ouster of jurisdiction” notion as parochial. Now, there is a heavy presumption in favor of such clauses.... Id. at 303 n. 9 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)); see M/S Bremen, 407 U.S. at 9, 15, 92 S.Ct. 1907 (rejecting the ouster of jurisdiction argument and holding that forum selection clauses should control absent a strong showing of unreasonableness, fraud, or overreaching); Vimar Seguros y Re-aseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 537-39, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995) (viewing foreign arbitration clauses as a subset of forum selection clauses, and relying on The Bremen in support of its holding enforcing foreign arbitration clause); see also Dean Witter Reynolds, 470 U.S. at 219-20, 105 S.Ct. 1238 (Congressional purpose in enacting FAA was to “overrule the judiciary's longstanding refusal to enforce agreements to arbitrate” on ground of ouster of jurisdiction). As we have indicated, this Court favors agreements to arbitrate; any broad suggestion that Quarrington Court may have provided to the contrary should not be relied upon." }, { "docid": "22110008", "title": "", "text": "but merely the previous judicial hostility to arbitration agreements”). We are not persuaded that the “ouster” explanation of § 4’s “save for” clause carries the day. To the extent that the ancient “ouster” doctrine continued to impede specific enforcement of arbitration agreements, §2 of the FAA, the Act’s “centerpiece provision,” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 625 (1985), directly attended to the problem. Covered agreements to arbitrate, § 2 declares, are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Having commanded that an arbitration agreement is enforceable just as any other contract, Congress had no cause to repeat the point. See 1 I. Mac-Neil, R. Speidel, & T. Stipanowich, Federal Arbitration Law § 9.2.3.3, p. 9:18 (1995) (hereinafter MacNeil) (“Th[e] effort to connect the ‘save for’ language to the ancient problem of ‘ouster of jurisdiction’ is imaginative, but utterly unfounded and historically inaccurate.” (footnote omitted)). In addition to its textual implausibility, the approach Vaden advocates has curious practical consequences. It would permit a federal court to entertain a § 4 petition only when a federal-question suit is already before the court, when the parties satisfy the requirements for diversity-of-citizenship jurisdiction, or when the dispute over arbitrability involves a maritime contract. See, e. g., Westmoreland, 100 F. 3d, at 268-269; 1 MacNeil §9.2.3.1, pp. 9:12-9:13 (when a federal-question suit has been filed in or removed to federal court, the court “may order arbitration under FAA §4”). Vaden’s approach would not accommodate a §4 petitioner who could, file a federal-question suit in (or remove such a suit to) federal court, but who has not done so. In contrast, when the parties’ underlying dispute arises under federal law, the “look through” approach permits a §4 petitioner to ask a federal court to compel arbitration without first taking the formal step of initiating or removing a federal-question suit — that is, without seeking federal adjudication of the very questions it wants to arbitrate rather than litigate. See id., § 9.2.3.3, p. 9:21 (explaining that the approach" }, { "docid": "715781", "title": "", "text": "otherwise vested of jurisdiction of the suit would not be divested [of jurisdiction] by the arbitration agreement and may proceed to order arbitration, contrary to prior precedent.” Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F.Supp. 957, 963 (S.D.N.Y.1988); see also Westmoreland Capital Corp. v. Findlay, 100 F.3d 263, 267-68 & n. 6 (2d Cir.1996) (adopting the interpretation of the Drexel Burnham court); Prudential-Bache Sec., Inc. v. Fitch, 966 F.2d 981, 988 (5th Cir.1992) (same); Klein v. Drexel Burnham Lambert, Inc., 737 F.Supp. 319, 323 n. 12 (E.D.Pa.1990) (same). This interpretation of § 4’s saving clause is fully in keeping with both the FAA’s overall purpose and § 2’s similar saving clause. For a long time, courts would not specifically enforce arbitration agreements, on the self-serving theory that agreements to arbitrate ousted courts of jurisdiction. Indeed, the legislative history of the FAA makes unmistakably clear that its purpose was “to ensure judicial enforcement of privately made agreements to arbitrate” by “overruling] the judiciary’s longstanding refusal to enforce agreements to arbitrate.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-20, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) ; see also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Scherk v. Alberto-Culver Co., 417 U.S. 506, 510-11 & n. 4, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974); Jenkins v. First American Cash Advance of Ga., LLC, 400 F.3d 868, 874 (11th Cir.2005) (purpose of FAA was to reverse judicial hostility to arbitration agreements and put them on equal footing with other contracts); Commercial Metals, 577 F.2d at 266 (“At common law, agreement in contracts to submit disputes arising therefrom to arbitration, for various reasons, were not specifically enforced by courts.... ”). Section 2, the FAA’s primary substantive provision, provides that written arbitration agreements shall be enforceable “save upon such grounds as exist ... for the revocation of any contract.” 9 U.S.C. § 2. The Supreme Court has construed this “saving clause” as reflecting the Act’s overall purpose “to make arbitration agreements as enforceable as other contracts, but not more so.” Prima Paint, 388" }, { "docid": "22714083", "title": "", "text": "overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate,” Byrd, supra, at 219-220, and place such agreements “ ‘upon the same footing as other contracts,’” Scherk v. Alberto-Culver Co., 417 U. S. 506, 511 (1974) (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924)). Section 2 of the Act therefore declares that a written agreement to arbitrate in any contract involving interstate commerce or a maritime transaction “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U. S. C. § 2, and § 4 allows a party to such an arbitration agreement to “petition any United States district court... for an order directing that such arbitration proceed in the manner provided for in such agreement.” But §4 of the FAA does not confer a right to compel arbitration of any dispute at any time; it confers only the right to obtain an order directing that “arbitration proceed in the manner provided for in [the parties’] agreement.” 9 U. S. C. §4 (emphasis added). Here the Court of Appeal found that, by incorporating the California rules of arbitration into their agreement, the parties had agreed that arbitration would not proceed in situations which fell within the scope of Calif. Code Civ. Proc. Ann. § 1281.2(c) (West 1982). This was not a finding that appellant had “waived” an FAA-guaranteed right to compel arbitration of this dispute, but a finding that it had no such right in the first place, because the parties’ agreement did not require arbitration to proceed in this situation. Accordingly, appellant’s contention that the contract interpretation issue presented here involves the “waiver” of a federal right is without merit. Second, appellant argues that we should set aside the Court of Appeal’s construction of the choice-of-law clause because it violates the settled federal rule that questions of arbitrability in contracts subject to the FAA must be resolved with a healthy regard for the federal policy favoring arbitration. Brief for Appellant 49-52; id., at 92-96, citing Moses H. Cone Memorial Hospital" }, { "docid": "22110040", "title": "", "text": "files a § 4 petition to compel arbitration precisely because it does not want to bring suit and litigate in court. Sometimes, however, a §4 petition is filed after litigation has commenced. The party seeking to compel arbitration in such cases is typically the defendant, who claims to be aggrieved by the plaintiffs attempt to litigate rather than arbitrate. This case involves the relatively unusual situation in which the party that initiated litigation of the underlying dispute is also the party seeking to compel arbitration. Because “the ouster problem was just as great under state law as it was under federal,” the absence of “save for” language in contemporaneous state arbitration acts bolsters our conclusion that § 4 was not devised to dislodge the common-law ouster doctrine. 1 I. MacNeil, R. Speidel, & T. Stipanowich, Federal Arbitration Law § 9.2.3.3, p. 9:18 (1995). See also 396 F. 3d 366, 369-370, n. 2 (CA4 2005) (case below). Specific jurisdiction-granting provisions may also authorize a federal court to entertain a petition to compel arbitration. See, e. g., 9 U. S. C. §§203, 205 (providing for federal-court jurisdiction over arbitration agreements covered by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards). Noting that the FAA sometimes uses “controversy” to refer to the dispute to be arbitrated, the dissent insists that it must have the same meaning in §4. Cf. post, at 73. But §4 does not ask a district court to determine whether it would have jurisdiction over “the controversy the §4 petitioner seeks to arbitrate”; it asks whether the court would have jurisdiction over “the controversy between the parties.” Here, the issue Discover seeks to arbitrate is undeniably only a fraction of the controversy between the parties. We decline to rewrite the statute to ignore this reality. Moreover, our reading of §4 fully accords with the statute’s subjunctive construction (“would have jurisdiction”) and its reference to “a suit.” Cf. post, at 75-76. Section 4, we recognize, enables a party to seek an order compelling arbitration even when the parties’ controversy is not the subject of pending litigation. See supra," }, { "docid": "22110007", "title": "", "text": "notion no longer holds sway. Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F. Supp. 957, 961 (SDNY 1988). Adherents to this “ouster” explanation of § 4’s language recall that courts traditionally viewed arbitration clauses as unworthy attempts to “oust” them of jurisdiction; accordingly, to guard against encroachment on their domain, they refused to order specific enforcement of agreements to arbitrate. See H. R. Rep. No. 96, 68th Cong., 1st Sess., 1-2 (1924) (discussed in Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219-220, and n. 6 (1985)). The “save for” clause, as comprehended by proponents of the “ouster” explanation, was designed to ensure that courts would no longer consider themselves ousted of jurisdiction and would therefore specifically enforce arbitration agreements. See, e. g., Westmoreland, 100 F. 3d, at 267-268, and n. 6 (adopting the “ouster” interpretation advanced in Drexel Burnham Lambert, 696 F. Supp., at 961-963); Strong, 485 F. 3d, at 631 (Marcus, J., specially concurring) (reading §4’s “save for” clause “as instructing the court to ‘set aside’ not the arbitration agreement..., but merely the previous judicial hostility to arbitration agreements”). We are not persuaded that the “ouster” explanation of § 4’s “save for” clause carries the day. To the extent that the ancient “ouster” doctrine continued to impede specific enforcement of arbitration agreements, §2 of the FAA, the Act’s “centerpiece provision,” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 625 (1985), directly attended to the problem. Covered agreements to arbitrate, § 2 declares, are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Having commanded that an arbitration agreement is enforceable just as any other contract, Congress had no cause to repeat the point. See 1 I. Mac-Neil, R. Speidel, & T. Stipanowich, Federal Arbitration Law § 9.2.3.3, p. 9:18 (1995) (hereinafter MacNeil) (“Th[e] effort to connect the ‘save for’ language to the ancient problem of ‘ouster of jurisdiction’ is imaginative, but utterly unfounded and historically inaccurate.” (footnote omitted)). In addition to its textual implausibility, the approach Vaden advocates has curious" }, { "docid": "16798208", "title": "", "text": "hand under a notion of abstention in favor of the pending state court case. In either case, we find error. The purpose for enacting the FAA was to assure judicial enforcement of privately made agreements to arbitrate by placing them “upon the same footing as other contracts.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985) (quoting H.R. Rep. No. 96, 68th Cong., 1st Sess. 1 (1924)); see also Gilmer v. Interstate/Johnson Lane Corp., — U.S. -, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991). Prior to enactment of the FAA, courts were hostile to the enforcement of arbitration provisions, following a long-standing common law rule which evolved from the judiciary’s jealous refusals to oust courts of jurisdiction in favor of other dispute resolution mechanisms. Dean Witter, 470 U.S. at 220 n. 6, 105 S.Ct. at 1242 n. 6. The Act’s purpose is thus fulfilled at its core by the declaration in § 2 that a written agreement to arbitrate is “valid, irrevocable, and enforceable” and the sanction provided in § 4 for specific enforcement of the agreement. 9 U.S.C. §§ 2 & 4 (1988). The FAA creates a separate federal cause of action for enforcement of agreements within its scope, even if the underlying dispute depends entirely on state law. It does not, however, mandate arbitration for all disputes simply when arbitration is demanded. Rather, it provides for the enforcement of agreements in which the parties have agreed to arbitration. Although the FAA manifests a liberal federal policy favoring arbitration agreements and “questions of arbitrability must be addressed with a healthy regard” for this policy, Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), the Act leaves interpretation of an agreement to the application of common law principles of contract law. Perry v. Thomas, 482 U.S. 483, 493 n. 9, 107 S.Ct. 2520, 2527 n. 9, 96 L.Ed.2d 426 (1987). Doubts on the issue of arbitrability, however, are to be resolved in favor of the policy favoring arbitration." }, { "docid": "9498128", "title": "", "text": "would oust the court of jurisdiction. Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F.Supp. 957, 961-62 (S.D.N.Y.1988). As the authors of a respected federal arbitration treatise explain, this theory is historically inaccurate. See 1 MacNeil, Speidel & Stipanowich, Federal Arbitration Law § 9.2.3 (1995). For, the \"save for\" language is found only in the FAA, not in any of the state arbitration reform acts upon which the FAA was based. Those states suffered from the same common law ouster problem. Had the \"save for” language been meant to solve the ouster problem, \"similar language would have been found in the 1920 New York Act, the 1923 New Jersey Act, and the old UAA, all drafted by the same reformers who drafted the FAA.” Id. at 9:18. . Several such inquiries suggest themselves. First, in order to decide if a federal question exists, the court must decide whether Ms. Vaden’s state law counterclaims are completely preempted by the Federal Deposit Insurance Act. See 12 U.S.C. § 1831d(a) (2000). This decision may be affected by the court's determination as to whether Discover Bank— as opposed to merely Discover Financial Services — is a party of interest in the state law suit. Second, if the court finds that a federal question has not been properly stated, it will need to consider the pending motion to amend and, if granting it, ascertain whether the parties are diverse and whether the other requirements of § 1332 are properly met. . In the event the lower court concludes it does have subject matter jurisdiction over this case, it should reexamine whether there was a question of material fact about the existence of an arbitration agreement between these particular parties. Specifically, the district court should consider whether Discover’s own financial records — viewed in the light most favorable to Vaden — could successfully rebut the presumption that she was subject to the amended agreement during the relevant time period." }, { "docid": "20646539", "title": "", "text": "party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. 9 U.S.C. § 4 (emphasis added). By contrast, section 10 of the Act provides that “the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration” if certain grounds for vacatur exist. Id. § 10(a) (emphasis added). The critical question before us is whether the textual difference between § 4 and § 10 means that a look-through approach applies only to the former. Westmoreland rejected the look-through approach with respect to § 4 based on the decisions of a number of district courts in our Circuit, as well as the decisions of our sister circuits. See 100 F.3d at 267 (citing cases). In chief, Westmoreland accepted the reasoning of Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F.Supp. 957 (S.D.N.Y. 1988), a decision penned by Judge Leval while still on the district court. Valenzuela Bock held, and Westmoreland agreed, that the “save for” clause in § 4 constituted a congressional repudiation of the “ouster theory” — an “antiquated common law principle that an agreement to arbitrate would oust the federal courts of jurisdiction.” Westmoreland, 100 F.3d at 268 (citing Valenzuela Bock, 696 F.Supp. at 961-62). Additionally, West-moreland noted that the provisions lacking § 4’s unique language “have not been interpreted to confer jurisdiction on the federal courts” and that it “would produce an odd distinction” if “a petition to compel arbitration could be brought in federal court, but a petition under FAA §§ 9 or 10 to confirm or vacate the arbitration award in the same dispute could not.” Id. Westmoreland again relied on Valenzuela Bock’s" } ]

[ { "docid": "14032659", "title": "", "text": "use the goodwill and the trademark of the former partnership. By the 1928 dissolution of the brothers’ partnership, K. C. Love may have then had a right to use the “Love” trademark, but the right could only be perfected by use. Drexel Enterprises, Inc. v. Richardson, 312 F.2d 525 (10th Cir.); Ph. Schneider Brewing Co. v. Century Distilling Co., 107 F.2d 699 (10th Cir.). The authorities that the defendants cite as to the dissolution of a partnership also hold that the right in the trademark comes from the continued use. 3 Callman, Unfair Competition, Trademarks, and Monopolies, § 78.3(b)(4) (3d Ed. 1969). For at least twenty-six years the K. C. Love partnership did not use “Love” as a trademark, but instead used “K.C.” while J. H. Love built his goodwill on “Love.” K. C. Love did use the word “Love” in his trade name of Love Bottling Company or Dr. Pepper Love Bottling Company, but this does not resolve the issue here. Testimony and correspondence showed that the two brothers considered the trademark to belong to both, and that there was intent to keep the “Love” trademark in the family. It is also apparent that they also realized that nonuse would cause them to lose ownership of the trademark. K. C. Love was well aware of what might happen to the trademark in the event that J. H. Love sold his business. Intent to abandon a trademark may be inferred from the surrounding circumstances. Drexel Enterprises, Inc. v. Richardson, 312 F.2d 525 (10th Cir.). There was also established a prima facie case of abandonment by reason of a nonuse for two consecutive years. 15 U.S.C. § 1127. Although there was ample evidence of the brothers’ intent to continue the “Love” trademark between themselves or at least by one of them, K. C. Love’s intent to use the trademark in the future is not sufficient to avoid abandonment. American Photographic Pub. Co. v. Ziff-Davis Pub. Co., 135 F.2d 569 (7th Cir.). It is only through J. H. Love’s use of the “Love” trademark that K. C. Love claims the right to" } ]

[ { "docid": "16017364", "title": "", "text": "(2d Cir.), cert. denied, — U.S. -, 115 S.Ct. 484, 130 L.Ed.2d 396 (1994); King v. Innovation Books, 976 F.2d 824, 832 (2d Cir.1992); Ediciones Quiroga, S.L. v. Fall River Music, Inc., No. 93 Civ. 3914, 1996 WL 103842, at *5 (S.D.N.Y. March 7, 1995) (Patterson, J.); Mussington v. St. Luke’s-Roosevelt Hosp. Ctr., 824 F.Supp. 427, 433 (S.D.N.Y.1993), aff'd, 18 F.3d 1033 (2d Cir.1994). The laches defense has been used to bar both federal trademark claims as well as state statutory and common law claims. See, e.g., Saratoga Vichy Spring Co., Inc. v. Lehman, 625 F.2d 1037, 1040-41 (2d Cir.1980); Dial-A-Mattress Operating Corp. v. Mattress Madness, Inc., 841 F.Supp. 1339, 1355 (E.D.N.Y.1994) (Platt, C.J.); Byron v. Chevrolet Motor Div. of Gen. Motors Corp., No. 93 Civ. 1116, 1995 WL 465130, at *6 (S.D.N.Y. Aug. 7, 1995) (Peck, M.J.) (listing cases). Furthermore, laches may bar both-injunctive and monetary relief. See Tri-Star Pictures, 17 F.3d at 44 (laches bars injunc-tive relief); Cuban Cigar Brands N.V. v. Upmann Int'l, Inc., 457 F.Supp. 1090, 1096 (S.D.N.Y.1978), aff'd without op., 607 F.2d 995 (2d Cir.1979) (laches bars both kinds of relief). Judge Weinfeld summarized the defense of estoppel by laches as follows: Defendant’s proof in its laches defense must show that plaintiff had knowledge of defendant’s use of its marks, that plaintiff inexcusably delayed in taking action with respect thereto, and that defendant will be prejudiced by permitting plaintiff inequitably to assert its rights at this time. Obviously, whether the claim is sufficient to bar relief, depends upon a consideration of the circumstances of each particular ease and a balancing of the interests and equities of the parties. Cuban Cigar Brands, 457 F.Supp. at 1096 (internal citations omitted); see also Saratoga Vichy Spring, 625 F.2d at 1040 (citing this passage with approval). The issue of laches is left to the discretion of the district court. Tri-Star Pictures, 17 F.3d at 44. 36. ASM has unreasonably and inexcusably failed to be diligent in protecting its trademark rights. ASM first learned that Tap was using ASM’s trademark and book title some time during 1992 when it acquired" }, { "docid": "14285139", "title": "", "text": "has been diligent in its attempts to stop Riceland’s use of its infringing marks. ARI has opposed Rice-land’s attempts to register its trademark in this country. In addition, ARI quickly sought a preliminary injunction when the red-yellow trade dress was combined with the Riceland girl design. Second, as a general rule, the defense of laches does not bar injunctive relief, although other relief, such as an accounting may be barred. Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 614-15 (7th Cir. 1965) (“only in the most exceptional circumstances will injunctive relief be denied in a case of deliberate infringement”); Blue Bell, Inc. v. Ruesman, 335 F.Supp. 236, 237 (N.D.Ga.1971); American Hospital Association v. Bankers Commercial Life Insurance Co., 275 F.Supp. 563, 565 (N.D.Tx.1967), aff’d per curiam, 403 F.2d 718 (5th Cir. 1968), cert. denied, 394 U.S. 1018, 89 S.Ct. 1629, 23 L.Ed.2d 43 (1969); Trademarks and Tradenames, 74 Am.Jur.2d § 159 (1974). Finally, the Court observes that defendant has made no showing of prejudice because of any delay, a factor normally considered when laches is asserted. See, Tisch Hotels, supra, at 615 (Delay must amount to “virtual abandonment” so that “balance of equities would favor the knowing infringer.”); Cuban Cigar Brands N.V. v. Upmann International, Inc., 457 F.Supp. 1090, 1096-98 & n.29 (S.D.N.Y.1978) (delay alone does not constitute laches). In light of the facts presented, the Court holds that the circumstances do not warrant a finding that laches bars plaintiff’s relief. See Coca-Cola Co. v. Howard Johnson Co., 386 F.Supp. 330, 334 (N.D.Ga.1974) (“Whether laches bars an action depends on the circumstances of the particular case and is a question addressed to the discretion of the trial court.”) B. Indispensable Party Defendant claims that Alpha Trading Company because it co-owns the Abu Bint mark is an indispensable party without whom this action may not proceed. However, no evidence produced at the hearing demonstrates that Alpha is a co-owner. The testimony indicates instead that Alpha is ARI’s exclusive agent with the right to help register the Abu Bint mark. ARI did not intend to assign and has not assigned" }, { "docid": "1469416", "title": "", "text": "the Court to enjoin its use of the word “classroom” in the title of its periodical. III. There is an alternative, independent ground for the Court’s holding of no infringement — that Scholastic has made insufficient use of its “Classroom” trademark to assert its rights against Macmillan. The Supreme Court long ago noted one of the fundamental principals of trademark law: “There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed. The law of trade-marks is but a part of the broader law of unfair competition: the right to a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his; and it is not the subject of property except in connection with an existing business.” United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 50, 63 L.Ed. 141 (1918). Adoption and a single use of the mark may be sufficient to permit registration of the mark, but more is required if its owner seeks to use the mark to stifle the efforts of others. See La Societe Anonyme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1271 (2d Cir.1974). In situations such as this, the Court is required to do more than merely determine which party first asserted rights to the mark because “the concept of priority in the law of trademarks is applied ‘not in the calendar sense’ but on the basis of ‘the equities involved.’ ” Manhattan Industries, Inc. v. Sweater Bee by Banff, Ltd., 627 F.2d 628, 630 (2d Cir.1980), quoting Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir.1964). The Societe Anonyme case, which concerned the efforts of a business “with only a nominal claim to a valuable trademark [to] bar[] its use by a party with a substantial financial stake in using the" }, { "docid": "9548576", "title": "", "text": "necessarily claim a proprietary right in “At A Glance.” No Nonsense Fashions, Inc. v. Consolidated Foods Corp., 226 U.S.P.Q. 502, 507 (T.T.A.B.1985). The inconsistency of CAW’s positions on its rights in “At A Glance” is obvious, and “detracts from the credibility” of its defense. Id. Even if one ignores the inconsistency in CAW’s position, the evidence in this case shows that at the time of the first At-A-Glance ® registrations in 1936, no CAW product had the words “At a Glance” affixed to it. Prior to 1936 CAW had affixed “At A Glance” for two years to one product discontinued in 1932, T. Norris 432-33; Table A, at 4, and sporadically used the words in some price lists, catalogs and advertising. See supra at 11-18. CAW has thus failed to meet the common law affixation requirement. Moreover, this use of “At A Glance” was too casual and uneven to rise to the level of trademark rights. As the Second Circuit stated in La Societe Anonyme des Parfums le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1274 (2d Cir.1974): Trademark rights are not created by sporadic, casual, and nominal shipments of goods bearing a mark. There must be a trade in the goods sold under the mark or at least an active and public attempt to establish such a trade. See also Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir.1964) (sale of a few hundred cases of Dom Perignon held insufficient to reserve unregistered marks for all time against others); D.M. & Antique Import Corp. v. Royal Saxe Corp., 311 F.Supp. 1261, 1270 (S.D.N.Y.1969) (transitory and minimal use by the defendant held to be insufficient use to give defendant priority over the plaintiffs long, continued and notorious use). Besides failing to meet the affixation requirement, CAW has offered no proof that before 1936 it used “At A Glance” in any way to distinguish its products in consumers’ minds from those of its competitors as required to establish the prior use defense. See Speed Prods. Co. v. Tinnerman Prods., Inc., 179 F.2d 778, 781 (2d" }, { "docid": "8757082", "title": "", "text": "v. Metcalf, 240 U.S. 403, 413, 36 S.Ct. 357, 60 L.Ed. 713 (1916). . Scarves by Vera, Inc. v. Todo Imports Ltd. (Inc.), 544 F.2d 1167 (2d Cir. 1976) (women’s scarves and apparel v. cosmetics and fragrances); Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 245 (1970) (communications services v. computers); Safeway Stores, Inc. v. Safeway Properties, Inc., 307 F.2d 495 (2d Cir. 1962) (groceries v. real estate); Pure Foods, Inc. v. Minute Maid Corp., 214 F.2d 792 (5th Cir.), cert. denied, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 697 (1954) (juices v. meats); Admiral Corp. v. Penco, Inc., 203 F.2d 517 (2d Cir. 1953) (televisions, radios, electric ranges and refrigerators v. sewing machines and vacuum cleaners); Triangle Publications, Inc. v. Rohrlich, 167 F.2d 969 (2d Cir. 1948) (magazines v. girdles); S. C. Johnson & Son, Inc. v. Johnson, 116 F.2d 427 (2d Cir. 1940) (waxes and floor cleaners v. fabric cleaners); L. E. Waterman Co. v. Gordon, 72 F.2d 272 (2d Cir. 1934) (fountain pens v. razor blades); Yale Elec. Corp. v. Robertson, 26 F.2d 972 (2d Cir. 1928) (flashlights v. locks); Alfred Dunhill of London, Inc. v. Kasser Distillers Prods. Corp., 350 F.Supp. 1341 (E.D.Pa.1972), affd without opinion, 480 F.2d 917 (3d Cir. 1973) (pipes and tobacco v. scotch whiskey). . See Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir. 1964); 3 Callmann, The Law of Unfair Competition, Trade Marks and Monopolies, § 76.3(a), at 302 (3d ed. 1969). . Scarves by Vera, Inc. v. Todo Imports Ltd. (Inc.), 544 F.2d 1167, 1172 (2d Cir. 1976). . Yale Elec. Corp. v. Robertson, 26 F.2d 972, 974 (2d Cir. 1928). . Dwinell-Wright Co. v. White House Milk Co., 132 F.2d 822, 825 (2d Cir. 1943). . See, e. g., S. C. Johnson & Son, Inc. v. Johnson, 175 F.2d 176, 179-80 (2d Cir.), cert. denied, 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527 (1949). See generally Triumph Hosiery Mills, Inc. v. Triumph Int’l Corp., 308 F.2d 196, 198-99" }, { "docid": "12363830", "title": "", "text": "(1968); In Re Beatrice Foods Co., 429 F.2d 466, 473 (Cust. & Pat.App.1970); Community of Roquefort v. Santo, 443 F.2d 1196, 1199-1200, 58 CCPA 1303 (1971); B’il Red Barn, Inc. v. Red Barn Systems, Inc., 322 F.Supp. 98, 102-105 (N.D.Ind.1970); State of Florida v. Real Juices, Inc., 330 F.Supp. 428, 433 (M.D.Fla.1971); DeMert & Dougherty, Inc. v. Chesebrough-Pond’s, Inc., 348 F.Supp. 1194, 1196 (N.D.Ill., 1972); Black Panther Co., Inc. v. Godfrey L. Cabot, Inc., 121 U.S.P.Q. 533, 534 (T.T.A.B.1959). See also, La Societe Anonyme des Parfumes le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1273-1274 (2d Cir. 1974). The leading commentators agree. See 3 R. Callmann, Unfair Competition, Trademarks and Monopolies 292-93 (3d ed. 1969); E. Vandenburgh, Trademark Law and Procedure 25-27 (2d ed. 1968); 1 J. T. McCarthy, Trademarks and Unfair Competition 725-27 (1973). . “For the purposes of this chapter a mark shall be deemed to be used in commerce (a) on goods when it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto and the goods are sold or transported in commerce and (b) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in this and a foreign country and the person rendering the services is engaged in commerce in connection therewith.” 15 U.S.C. § 1127. . See Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413, 36 S.Ct. 357, 60 L.Ed. 713 (1916); Olin Mathieson Chemical Corp. v. Western States C & M Co., 227 F.2d 728, 730 (10th Cir. 1955), cert. denied, 351 U.S. 937, 76 S.Ct. 833, 100 L.Ed. 1464 (1955); Tillamook County Cream Ass’n v. Tillamook Cheese & Dairy Ass’n, 345 F.2d 158, 160 (9th Cir. 1965), cert. denied, 382 U.S. 903, 86 S.Ct. 239, 15 L.Ed.2d 157 (1965); Mine Safety Appliances Co. v. Electric Storage Battery Co., 405 F.2d 901, 904 (Cust. & Pat. App.1969). . It is true that the" }, { "docid": "688316", "title": "", "text": "Corp. v. Grosset & Dunlap, Inc., 256 F.Supp. 382 (S.D.N.Y.1966). . Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). . American Footwear Corp. v. General Footwear Co., 609 F.2d 655, 664 (2d Cir. 1979); Mushroom Makers, Inc. v. R. G. Barry Corp., 441 F.Supp. 1220, 1225 (S.D.N.Y.1977), aff’d, 580 F.2d 44 (2d Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979); Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir. 1964). . Scarves By Vera Inc. v. Todo Imports Ltd. (Inc.), 544 F.2d 1167, 1172 (2d Cir. 1976). See also American Footwear Corporation v. General Footwear Company Ltd., 609 F.2d 655, 664 (2d Cir. 1979); Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir. 1964). . McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1131 (2d Cir. 1979) (emphasis added). . Id. at 1130; Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976); S. S. Kresge Co. v. United Factory Outlet, Inc., 598 F.2d 694, 696 (1st Cir. 1979). . Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). . Id. (“[N]o matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise and what success it has achieved in securing public identification, it cannot deprive competing manufacturers of the product of the right to call an article by its name.”) See also Reese Publishing Co. v. Hampton International Communications, Inc., 620 F.2d 7, 12-13, (2d Cir. 1980); CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 15 (2d Cir. 1975); S. S. Kresge Co. v. United Factory Outlet, Inc., 598 F.2d 694, 696 & n. 4 (1st Cir. 1979) (citing cases). . Stix Products, Inc. v. United Merchants & Manufacturers Inc., 295 F.Supp. 479, 488 (S.D. N.Y.1968), cited with approval in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 11 (2d" }, { "docid": "8757092", "title": "", "text": "B. Kent & Sons, Ltd. v. P. Loriliard Co., 114 F.Supp. 621, 625-26 (S.D.N.Y.1953), aff'd on opinion below, 210 F.2d 953 (2d Cir. 1954); Restatement (Second) of Torts § 729, Comment a at 118 (Tent. Draft No. 8, 1963). . Scarves by Vera, Inc. v. Todo Imports, Ltd. (Inc.), 544 F.2d 1167, 1175 (2d Cir. 1976). . Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 613 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960). . Scarves by Vera, Inc. v. Todo Imports Ltd. (Inc.), 544 F.2d 1167, 1173 (2d Cir. 1976) (emphasis supplied). See Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 536 (2d Cir. 1964). . Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 614 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960). . Federal Telephone & Radio Corp. v. Federal Television Corp., 180 F.2d 250, 251 (2d Cir. 1950). . See Exquisite Form Indus., Inc. v. Exquisite Fabrics of London, 378 F.Supp. 403, 414 (S.D.N.Y.1974); Apollo Distrib. Co. v. Apollo Imports Inc., 341 F.Supp. 455, 458 (S.D.N.Y.1972). . Radio Shack Corp. v. Radio Shack, Inc., 180 F.2d 200, 206 (7th Cir. 1950); see Pocket Books, Inc. v. Dell Publishing Co., 49 Misc.2d 252, 267 N.Y.S.2d 269, 273 (Sup.Ct.1966) (“the touchstone for the exercise of the Court’s equity power remains . . . unfairness”). . American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 14 (5th Cir. 1974); Geisel v. Poynter Prods., Inc., 283 F.Supp. 261, 267 (S.D.N.Y.1968). . Cf. King Research, Inc. v. Shulton, Inc., 454 F.2d 66, 69 (2d Cir. 1972); see also Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 498 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). . See Dwinell-Wright Co. v. White House Milk Co., 44 F.Supp. 423, 428 (W.D.N.Y.1942), aff'd on other grounds, 132 F.2d 822 (2d Cir. 1943); cf. DuPont Cellophane Co., Inc. v. Waxed Prods. Co., 85 F.2d 75, 82 (2d Cir. 1936), cert. denied, 299 U.S. 601, 57 S.Ct." }, { "docid": "4000226", "title": "", "text": "of losing equitable credits, one must knuckle under the the unjustified threats of an adversary. I reject the argument. (b) P&G’s Minor Brands. P&G’s action is premised in part upon its registered ownership of the brands Sure for tampons and Assure for mouthwash and deodorant. PPC rebuts this part of plaintiff’s claim by contending that P&G owns no rights in these marks, having failed to utilize them in commerce. In language of the Supreme Court dating from 1916: “There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed. The law of trade-marks is but a part of the broader law of unfair competition; the right to a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his; and it is not the subject of property except in connection with an existing business.” United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 51, 63 L.Ed. 141 (1918); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916). The defendant relies on Judge Friendly’s landmark opinion in La Societe Anonyme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265 (2 Cir. 1974) (the “Snob” case) to the effect that usage which is sporadic, nominal and intended solely for trademark maintenance is insufficient to establish and maintain trademark rights. Broad statements of principle, however, will not answer for a particular case since “[d]etermining what constitutes sufficient use . . . [is] a case-by-case task . [and] the balance of the equities plays an important role in deciding whether defendant’s use is sufficient . . . .” Snob, 495 F.2d at 1274 n. 11; Pab Produits v. Satinine Societa, 570 F.2d 328, 334 (C.C.P. A.1978). Upon detailed review of all the pertinent facts, I have concluded that P&G does not own a" }, { "docid": "688315", "title": "", "text": "Accord McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1130 (2d Cir. 1979); Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 542 (2d Cir. 1956); Habitat Design Holdings Ltd. v. Habitat, Inc., 436 F.Supp. 327, 334 (S.D.N.Y.1977); Jean Patou Inc. v. Jacqueline Cochran, Inc., 201 F.Supp. 861, 863 (S.D.N.Y.1962), aff’d, 312 F.2d 125 (2d Cir. 1963). . Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). Other courts have repeatedly analyzed trademark infringement claims in light of these factors. See, e. g., McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1130 (2d Cir. 1979); Mushroom Makers, Inc. v. R. G. Barry Corp., 441 F.Supp. 1220, 1225-26 (S.D.N.Y.1977), aff’d, 580 F.2d 44 (2d Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979); Habitat Design Holdings Ltd. v. Habitat, Inc., 436 F.Supp. 327, 331 n. 5 (S.D.N.Y.1977); Exquisite Form Indus., Inc. v. Exquisite Fabrics of London, 378 F.Supp. 403, 409 (S.D.N.Y.1974); Field Enterprises Educ. Corp. v. Grosset & Dunlap, Inc., 256 F.Supp. 382 (S.D.N.Y.1966). . Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). . American Footwear Corp. v. General Footwear Co., 609 F.2d 655, 664 (2d Cir. 1979); Mushroom Makers, Inc. v. R. G. Barry Corp., 441 F.Supp. 1220, 1225 (S.D.N.Y.1977), aff’d, 580 F.2d 44 (2d Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979); Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir. 1964). . Scarves By Vera Inc. v. Todo Imports Ltd. (Inc.), 544 F.2d 1167, 1172 (2d Cir. 1976). See also American Footwear Corporation v. General Footwear Company Ltd., 609 F.2d 655, 664 (2d Cir. 1979); Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir. 1964). . McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1131 (2d Cir. 1979) (emphasis added). . Id. at 1130; Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d" }, { "docid": "8280617", "title": "", "text": "(5th Cir. 1965) ; Ritter v. Rohm & Haas Co., supra; United States v. Manufacturers Hanover Trust Co., 229 F.Supp. 544, 546 (S.D.N.Y. 1964). . Tr. 110-111. . Tr. 23; DX GF, at p. 13. . DX GF, at pp. 68-69. . Chandon Champagne Corp. v. San Marino Wine Corp., supra, 335 F.2d at 535. . Cf. Foster v. Magnetic Heating Corp., 297 F.Supp. 512, 519 (S.D.N.Y.1968), aff’d per curiam, 410 F.2d 12 (2d Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 82, 24 L.Ed.2d 80 (1969). . See discussion on pp. 16-17. . Miles Shoes, Inc. v. R. H. Macy & Co., supra; Landers, Frary & Clark v. Universal Cooler Corp., 85 F.2d 46 (2d Cir. 1936) ; MY-T Fine Corp. v. Samuels, 69 F.2d 76, 78 (2d Cir. 1934). . Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir. 1956). . See, Baglin v. Cusenier Co., 221 U.S. 580, 595-596, 31 S.Ct. 669, 55 L.Ed. 863 (1911) ; George W. Luft Co. v. Zande Cosmetic Co., 142 F.2d 536 (2d Cir. 1944). . W. E. Bassett Co. v. Revlon, Inc., supra, 305 F.Supp. at 588-89. . The fruit of this conscious imitation by plaintiff, strong evidence itself of possible confusion (King Research, Inc. v. Shulton, Inc., 454 F.2d 66 (2d Cir. 1972) ; Tisch Hotels, Inc. v. Americana Inn, Inc., supra; Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., supra; Sears, Roebuck & Co. v. Allstate Driving School, Inc., supra), was manifested in several instances of actual commercial attempts by plaintiff’s dealers to exploit the similarity. DX CP, OR, GJ and GF. . Kaplan v. Helenhart Novelty Corp., 182 F.2d 311, 314 (2d Cir. 1950). . Restatement of Torts, § 773 (1939) ; Dinkins v. General Aniline & Film Corp., 214 F.Supp. 276, 280 (S.D.N.Y.1963). . Tr. 212-13, 218. . Field Enterprises Educational Corp. v. Cove Indus., Inc., 297 F.Supp. 989, 995 (E.D.N.Y.1969). . Fieldcrest Mills, Inc. v. Couri, 220 F. Supp. 929 (S.D.N.Y.1963). . Field Enterprises Educational Corp. v. Cove Indus., Inc., supra, 297 F.Supp. at 996. . Jean Patou, Inc. v. Jacqueline" }, { "docid": "22175399", "title": "", "text": "In addition, for each type of mark, the TLRA amended the definition of use in commerce to eliminate sham uses to reserve a right in a mark. The propriety of applying Neiv West’s totality approach is further supported by the fact that New West based its formulation on at least one service mark case. See New West, 595 F.2d at 1200 (citing Hotel Corp. of Am., 153 U.S.P.Q. at 576). Although perhaps more flexible than the approaches taken by other courts, the totality of the circumstances approach is consistent with various notable decisions discussing the “use of commerce” requirement of § 1127. See e.g., La Societe Anonyme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1274 n. 11 (2d Cir.1974) (“[T]he balance of the equities plays an important role in deciding whether defendant’s use is sufficient to warrant trademark protection.”); New England Duplicating Co. v. Mendes, 190 F.2d 415, 418 (1st. Cir.1951) (“It seems to us that although evidence of sales is highly persuasive, the question of use adequate to establish appropriation remains one to be decided on the facts of each case, and that evidence showing, first, adoption, and, second, use in a way sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind as those of the adopter of the mark, is competent to establish ownership, even without evidence of actual sales.”); Hotel Corp. of Am., 153 U.S.P.Q. at 576 (“A party may acquire rights in a designation ... through prior use thereof in advertising or promotional material connected with the publicizing and/or offering for sale of goods or services providing that this use has been of such nature and extent as to create an association of the goods or services and the mark with the user thereof.”). Accordingly, we hold that the totality of the circumstances must be employed to determine whether a service mark has been adequately used in commerce so as to gain the protection of the Lanham Act. In applying this approach, the district courts should be guided in their consideration of non-sales activities" }, { "docid": "23281506", "title": "", "text": "types of unfair competition, infringement of registered trademarks, 15 U.S.C. § 1114, and the related tort of false designation of the origin of goods, 15 U.S.C. § 1125(a). Federal courts have jurisdiction to hear suits invoking these protections. In addition, many states by statute or judge-made law protect against trademark infringement and other types of unfair competition, such as misappropriation of the fruits of another’s labor, see Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977); theft of trade secrets, see Pachmayr Gunworks, Inc. v. Olin Mathieson Chemical Corp., 502 F.2d 802, 807-08 (9th Cir. 1974); and trade disparagement, see Kemart Corp. v. Printing Arts Research Laboratory, Inc., 269 F.2d 375, 388-94 (9th Cir.), cert. denied, 361 U.S. 893, 80 S.Ct. 197, 4 L.Ed.2d 151 (1959). These protections need not track those provided by the Lanham Act. See Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 232, 84 S.Ct. 784, 789, 11 L.Ed.2d 661 (1964); John Wright, Inc. v. Casper Corp., 419 F.Supp. 292, 317 (E.D.Pa.1976), modified sub nom. Donsco, Inc. v. Casper Corp., 587 F.2d 602 (3rd Cir. 1978); Markel v. Scovill Mfg. Co., 471 F.Supp. 1244, 1249 (W.D.N.Y.), aff’d, 610 F.2d 807 (2d Cir. 1979). If diversity factors exist, federal courts of course have jurisdiction to hear suits asserting these state law protections. Thus, a plaintiff complaining of trademark infringement in federal court may invoke either federal or state protections, or both. Confusion as to the source of the substantive law is understandable because federal and state laws regarding trademarks and related claims of unfair competition are substantially congruent. See K-S-H Plastics, Inc. v. Carolite, Inc., 408 F.2d 54, 59 n.2 (9th Cir.), cert. denied, 396 U.S. 825, 90 S.Ct. 69, 24 L.Ed.2d 76 (1969); Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366, 372 (1st Cir. 1980); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 382 n.14 (5th Cir. 1977); La Societe Anonyme des Parfums le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1270 n.5 (2d Cir. 1974); Maternally Yours, Inc. v. Your Maternity Shop," }, { "docid": "1469417", "title": "", "text": "39 S.Ct. 48, 50, 63 L.Ed. 141 (1918). Adoption and a single use of the mark may be sufficient to permit registration of the mark, but more is required if its owner seeks to use the mark to stifle the efforts of others. See La Societe Anonyme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1271 (2d Cir.1974). In situations such as this, the Court is required to do more than merely determine which party first asserted rights to the mark because “the concept of priority in the law of trademarks is applied ‘not in the calendar sense’ but on the basis of ‘the equities involved.’ ” Manhattan Industries, Inc. v. Sweater Bee by Banff, Ltd., 627 F.2d 628, 630 (2d Cir.1980), quoting Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir.1964). The Societe Anonyme case, which concerned the efforts of a business “with only a nominal claim to a valuable trademark [to] bar[] its use by a party with a substantial financial stake in using the mark,” 495 F.2d at 1271, is particularly illustrative here. There the Court reversed the district court’s finding of trademark infringement because the owner of a trademark for a perfume had made only token efforts to sell its product; indeed, the owner appeared to regard its sporadic sales of the product, combined with the threat of litigation “as a relatively painless way to keep a potential competitor at bay.” Id. at 1273. Rather than establish a set rule for all circumstances, Judge Friendly instead stated that “the balance of equities plays an important role in deciding whether [the trademark owner’s] use is sufficient to warrant trademark protection.” Id. at 1274 n. 11. The balance of equities here clearly favors Macmillan. Macmillan did not copy the name of its magazine from Scholastic; it made a good faith effort to comply with trademark law; and it has devoted its energies principally to developing a new magazine for teachers. Scholastic, in contrast, has made relatively minor efforts to employ its trademark rights. As the purpose of trademark law is" }, { "docid": "8280611", "title": "", "text": "not inconsistent with this opinion within twenty (20) days. . Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d 1097 (2d Cir. 1969) ; Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 612 (2d Cir. 1960) ; Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538 (2d Cir. 1956) ; Dwinell-Wright Co. v. White House Milk Co., 132 F.2d 822, 824-825 (2d Cir. 1943). . Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 437 F.2d 566, 568 (2d Cir. 1971) (emphasis added). . Syntex Laboratories, Inc. v. Norwich Pharmacal Co., supra. . B & L Associates v. H. Daroff & Sons, Inc., 421 F.2d 352, 354 (2d Cir. 1970) ; Miss Universe, Inc. v. Patricelli, 408 F.2d 506, 509 (2d Cir. 1969) ; Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir. 1961). . Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., supra, 411 F.2d at 1099; Triumph Hosiery Mills, Inc. v. Triumph Int’l Corp., 308 F.2d 196, 198 (2d Cir. 1962) ; Polaroid Corp. v. Polarad Electronics Corp., supra, 287 F.2d at 495; Restatement of Torts, §§ 729, 730 and 731 (1939). . Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531 (2d Cir. 1964). . Defendant’s Exhibits (“DX-”) GD, GF; plaintiff’s post-trial brief, p. 4. . Trial transcript (“Tr.-), p. 209. . See, e.g., Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 245 (1970) ; Arrow Distilleries, Inc. v. Globe Brewing Co., 117 F.2d 347, 351 (4th Cir. 1941) ; France Milling Co. v. Washburn-Crosby Co., 7 F.2d 304 (2d Cir.), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925). . Miss Universe, Inc. v. Patricelli, supra, 408 F.2d at 509. . Miles Shoes, Inc. v. R. H. Macy & Co., 199 F.2d 602, 603 (2d Cir. 1952). . Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609 (7th Cir. 1965) ; Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 281 F.2d 755, 760 (2d Cir. 1960) ; Chester Barrie, Ltd. v. The" }, { "docid": "8757083", "title": "", "text": "(2d Cir. 1934) (fountain pens v. razor blades); Yale Elec. Corp. v. Robertson, 26 F.2d 972 (2d Cir. 1928) (flashlights v. locks); Alfred Dunhill of London, Inc. v. Kasser Distillers Prods. Corp., 350 F.Supp. 1341 (E.D.Pa.1972), affd without opinion, 480 F.2d 917 (3d Cir. 1973) (pipes and tobacco v. scotch whiskey). . See Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir. 1964); 3 Callmann, The Law of Unfair Competition, Trade Marks and Monopolies, § 76.3(a), at 302 (3d ed. 1969). . Scarves by Vera, Inc. v. Todo Imports Ltd. (Inc.), 544 F.2d 1167, 1172 (2d Cir. 1976). . Yale Elec. Corp. v. Robertson, 26 F.2d 972, 974 (2d Cir. 1928). . Dwinell-Wright Co. v. White House Milk Co., 132 F.2d 822, 825 (2d Cir. 1943). . See, e. g., S. C. Johnson & Son, Inc. v. Johnson, 175 F.2d 176, 179-80 (2d Cir.), cert. denied, 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527 (1949). See generally Triumph Hosiery Mills, Inc. v. Triumph Int’l Corp., 308 F.2d 196, 198-99 (2d Cir. 1962). . Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). . Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d 1097, 1099 (2d Cir. 1969), cert. denied, 396 U.S. 1054, 90 S.Ct. 707, 24 L.Ed.2d 698 (1970); see Triumph Hosiery Mills, Inc. v. Triumph Int’l Corp., 308 F.2d 196, 198 (2d Cir. 1962). . Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). . Cf. Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 494 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961); Alfred Dunhill of London, Inc. v. Kasser Distillers Prods. Corp., 350 F.Supp. 1341, 1358 (E.D.Pa.1972), aff’d without opinion, 480 F.2d 917 (3d Cir. 1973). . The finding that MUSHROOM[S] is a fanciful, nondescriptive mark obviates the need to pass upon a contention pressed by Barry at various times during this litigation: that" }, { "docid": "8280616", "title": "", "text": "H. Daroff & Sons, Inc., supra, 421 F.2d at 354. . Callmann, Unfair Competition-Trademarks and Monopolies (3d ed. 1971). . Communications Satellite Corp. v. Comcet, Inc., supra, 429 F.2d at 1252. . American Drill Bushing Co. v. Rockwell Mfg. Co., 342 F.2d 1019, 1022, 52 CCPA 1173 (1965). . id. ' . Application of Dobeckmun Co., 286 F.2d 187, 188, 48 CCPA 810 (1960). . Chandon Champagne Corp. v. San Marino Wine Corp., supra, 335 F.2d at 535; Ritter v. Rohm & Haas Co., 271 F.Supp. 313, 347 (S.D.N.Y.1967). . Tr. 198. . Henry Steinway acknowledged that he “undoubtedly received” a copy of this letter. Tr. 223. . Plaintiffs Exhibit (“PX -”) 57. . Tr. 222-23. . PX 36. . Chandon Champagne Corp. v. San Marino Wine Corp., supra, 335 E.2d at 535; C. B. Fleet Co. v. Mobile Drug Co., 284 F. 813 (5th Cir. 1922). . DX GF and GJ. . Tisch Hotels, Inc. v. Americana Inn, Inc., supra, 350 F.2d at 615; Akers v. State Marine Lines, Inc., 344 F.2d 217, 220 (5th Cir. 1965) ; Ritter v. Rohm & Haas Co., supra; United States v. Manufacturers Hanover Trust Co., 229 F.Supp. 544, 546 (S.D.N.Y. 1964). . Tr. 110-111. . Tr. 23; DX GF, at p. 13. . DX GF, at pp. 68-69. . Chandon Champagne Corp. v. San Marino Wine Corp., supra, 335 F.2d at 535. . Cf. Foster v. Magnetic Heating Corp., 297 F.Supp. 512, 519 (S.D.N.Y.1968), aff’d per curiam, 410 F.2d 12 (2d Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 82, 24 L.Ed.2d 80 (1969). . See discussion on pp. 16-17. . Miles Shoes, Inc. v. R. H. Macy & Co., supra; Landers, Frary & Clark v. Universal Cooler Corp., 85 F.2d 46 (2d Cir. 1936) ; MY-T Fine Corp. v. Samuels, 69 F.2d 76, 78 (2d Cir. 1934). . Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir. 1956). . See, Baglin v. Cusenier Co., 221 U.S. 580, 595-596, 31 S.Ct. 669, 55 L.Ed. 863 (1911) ; George W. Luft Co. v. Zande Cosmetic Co., 142 F.2d" }, { "docid": "4000227", "title": "", "text": "in connection with an existing business.” United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 51, 63 L.Ed. 141 (1918); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916). The defendant relies on Judge Friendly’s landmark opinion in La Societe Anonyme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265 (2 Cir. 1974) (the “Snob” case) to the effect that usage which is sporadic, nominal and intended solely for trademark maintenance is insufficient to establish and maintain trademark rights. Broad statements of principle, however, will not answer for a particular case since “[d]etermining what constitutes sufficient use . . . [is] a case-by-case task . [and] the balance of the equities plays an important role in deciding whether defendant’s use is sufficient . . . .” Snob, 495 F.2d at 1274 n. 11; Pab Produits v. Satinine Societa, 570 F.2d 328, 334 (C.C.P. A.1978). Upon detailed review of all the pertinent facts, I have concluded that P&G does not own a protectable interest in the marks in question. Most of the facts here are not in dispute, although there is some dispute concerning P&G’s intentions and motives. For many years P&G has maintained a formal program for the purpose of protecting its ownership rights in brand names which were not being actively used in commerce on its products. This program was entitled the “Minor Brands Program”. In 1974 P&G’s office of legal counsel circulated a memorandum institutionalizing the procedures to be followed for this brand maintenance program. The memorandum was revised in 1976 and was received in evidence at the trial. (Exhibit D-74) The memorandum begins by stating that the failure to use a trademark for two consecutive years may result in its loss. “The Minor Brands Sales Program is intended”, it states, “to rebut any such inference of abandonment and thus maintain the company’s ability to subsequently use the marks on goods in question as major brands.” The memorandum directs that the trademark section of the legal division will annually prepare a list of every" }, { "docid": "22175398", "title": "", "text": "rights can vest even before any goods or services are actually sold if ‘the totality of [one’s] prior actions, taken together, [can] establish a right to use the-trademark.’ ” Brookfield, 174 F.3d at 1052 (quoting New West, 595 F.2d at 1200). We find that the totality of the circumstances test should apply to service mark cases as well. The statutory language supports the conclusion that “use in commerce” should be similarly defined for service marks as it is for trade marks. For both goods and services, the “use in commerce” requirement includes (1) an element of actual use, and (2) an element of display. Compare § 1127’s definition of “use in commerce” for goods — “a mark shall be deemed to be in use in commerce — ... on goods when — it is placed in any manner on the goods ... the goods are sold ... ” — with that section’s definition of “use in commerce” for services: “on services when it is used or displayed ... and the services are rendered ... ”. In addition, for each type of mark, the TLRA amended the definition of use in commerce to eliminate sham uses to reserve a right in a mark. The propriety of applying Neiv West’s totality approach is further supported by the fact that New West based its formulation on at least one service mark case. See New West, 595 F.2d at 1200 (citing Hotel Corp. of Am., 153 U.S.P.Q. at 576). Although perhaps more flexible than the approaches taken by other courts, the totality of the circumstances approach is consistent with various notable decisions discussing the “use of commerce” requirement of § 1127. See e.g., La Societe Anonyme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1274 n. 11 (2d Cir.1974) (“[T]he balance of the equities plays an important role in deciding whether defendant’s use is sufficient to warrant trademark protection.”); New England Duplicating Co. v. Mendes, 190 F.2d 415, 418 (1st. Cir.1951) (“It seems to us that although evidence of sales is highly persuasive, the question of use adequate to establish appropriation" }, { "docid": "4264139", "title": "", "text": "Conans Pizza, Inc., 752 F.2d 145 (5th Cir.1985). Tandy’s failure to object to limited geographic use of a mark does not bar it from objecting later to widespread use of the mark. Id. at 152. Accordingly, the judgment of the District Court is reversed and remanded for proceedings not inconsistent with this opinion. . The standard requiring only unreasonable delay and prejudice to the defendant used by the District Court below has been used by other courts in cases in which the plaintiff sought to extend the normal legal statute of limitation period, see Gardner v. Panama R.R. Co., 342 U.S. 29, 30-31, 72 S.C.t. 12, 13-14, 96 L.Ed. 31 (1951), or cases in which no issue has been made regarding the presumptive effect of the analogous statute of limitation, see, e.g., American Home Products Corp. v. Lockwood Mfg. Co., 483 F.2d 1120 (6th Cir.1973); Cuban Cigar Brands N. V. v. Upmann International, Inc., 457 F.Supp. 1090 (S.D.N.Y.1978), aff’d 607 F.2d 995 (2d Cir.1979). This more general, less rigorous standard should not be used when the plaintiff brings an action prior to expiration of a presumptively effective statute of limitation. . In the context of purely equitable relief, the correct standard may be the somewhat more general and discretionary standard of determining only unreasonable delay and prejudice to the defendant. See Patterson v. Hewitt, 195 U.S. 309, 25 S.Ct. 35, 49 L.Ed. 214 (1904). To deny injunctive relief in trademark litigation, however, some affirmative conduct in the nature of an estoppel, see, e.g., James Burrough Ltd. v. Sign of Beefeater, Inc., 572 F.2d 574, 578-79 (7th Cir.1978), or conduct amounting to \"virtual abandonment,” see University of Pittsburgh v. Champion Products, Inc., 686 F.2d 1040, 1044-45 (3d Cir.1982), is necessary. On the basis of the record before us, Tandy’s behavior does not fit either of the above categories. Therefore, the District Court erred in using laches to bar both forms of relief. . Section 10, 15 U.S.C. § 1060 provides in relevant part: A registered mark or a mark for which application to register has been filed shall be assignable with" } ]

[ { "docid": "22985145", "title": "", "text": "to exercise jurisdiction over Murray’s state-law claim and dismissed the complaint in its entirety. This appeal followed. II. DISCUSSION On appeal, Murray contends that the facts alleged in the complaint are sufficient to support reasonable inferences (1) that the College had contemporaneous notice, actual, and constructive, that Murray was being subjected to a hostile environment, and (2) that it required Murray to repeat her second-year course work in retaliation for her complaints about the harassment. We agree with the district court’s conclusion that the complaint failed to state a claim on which relief can be granted. A. The Notice Requirement Title IX proscribes discrimination on the basis of gender in educational programs and activities receiving federal financial assistance: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... 20 U.S.C. § 1681(a). Title IX has been construed to prohibit gender discrimination against both students enrolled in federally supported educational programs and employees involved in such programs. See North Haven Board of Education v. Bell, 456 U.S. 512, 520-34, 102 S.Ct. 1912, 1917-25, 72 L.Ed.2d 299 (1982). An aggrieved individual has an implied right of action, see Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979), for injunctive relief or monetary damages, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71-73, 112 S.Ct. 1028, 1035-37, 117 L.Ed.2d 208 (1992). In reviewing claims of discrimination brought under Title IX by employees, whether for sexual harassment or retaliation, courts have generally adopted the same legal standards that are applied to such claims under Title VII. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 896-98 (1st Cir.1988) (harassment); Preston v. Commonwealth of Virginia ex rel. New River Community College, 31 F.3d 203, 206 (4th Cir.1994) (retaliation). See also Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 832 (10th Cir.) (Title VII provides “the most appropriate analogue when defining Title IX’s substantive standards”)" } ]

[ { "docid": "22467093", "title": "", "text": "may have led to the panel’s determination, e.g., the fact that several of the panel members may have been friends of Weisman and Kapur, and the fact that Nichols thought Kapur’s earlier testimony bolstered her testimony at the second hearing. A plaintiff may, of course, plead in the alternative, but the abundance of other possible reasons for the panel’s decision combined with the lack of any specific factual support for his claim of a racial motivation illustrates that his claim here is simply a “naked allegation” of racial discrimination, See Albert, 851 F.2d at 572. Dismissal of Yusufs racial discrimination claim based on the disparity between his sentence and Weisman’s was also proper because it too failed to connect the selectivity to racial bias. 2. The Title IX Claim As a second federal claim, Yusuf alleged that Vassar discriminated against him on account of his gender in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-88 (1988), by finding him guilty of the sexual harassment charge. Title IX provides, in relevant part, that: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a) (1988). Title IX is enforceable through an implied private right of action, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), for monetary damages as well as in-junctive relief, Franklin v. Gwinnett County Pub. Sch., — U.S.—, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). Title IX was enacted to supplement the Civil Rights Act of 1964’s bans on racial discrimination in the workplace and in universities. Because the statutes share the same goals and because Title IX mirrors the substantive provisions of Title VI of the Civil Rights Act of 1964, Grove City College v. Bell, 465 U.S. 555, 566, 104 S.Ct. 1211, 1217-18, 79 L.Ed.2d 516 (1984), courts have interpreted Title IX by looking to the body of law developed under Title VI, as" }, { "docid": "21387166", "title": "", "text": "the grounds That the statute provides no private right of action for employees. Title IX states: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. 20 U.S.C. § 1681(a) (West 1997). Courts are divided as to whether Title IX provides a cause of action not only to students who have suffered sex discrimination in federally funded educational programs, but employees of those programs as well. This issue has not been resolved by the Supreme Court nor the Second Circuit. For the reasons set forth below, this Court is persuaded that the remedies of Title IX are limited to student plaintiffs, and Title VII is meant to offer the exclusive remedy for employment discrimination based on sex. The parameters of Title IX have been partially established by three Supreme Court cases: Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); North Haven Board of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982); and Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). In Cannon, the Supreme Court found that Congress had intended a private right of action for a student plaintiff, based on the statutory purpose of “providing] individual citizens effective protection against [discriminatory] practices” at federally funded educational institutions. Id. 441 U.S. at 704-U9. Bell dealt with the issue of whether the Department of Health, Education and Welfare had authority to regulate a school’s employment practices pursuant to Title IX enforcement provisions. Bell, 456 U.S. at 540. The Court affirmed the Second Circuit’s finding that federal funds could be terminated for discrimination visited upon employees, as well as students, of educational programs. 456 U.S. at. 535-36. The Court did not address the availability of a private right of action for employees of such programs. Finally, in Franklin, the Court held that damages were available for a student-plaintiff filing an action for sexual harassment under" }, { "docid": "13424755", "title": "", "text": "the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Although both can be predicated on the same conduct, a claim of sex discrimination under Title IX is independent of a claim for violation of the equal-protection clause under the Fourteenth Amendment. See Murrell v. Sch. Dist. No. 1, 186 F.3d at 1251 n. 8 (“A state actor’s acquiescence in sex discrimination is independently actionable under the Fourteenth Amendment regardless of the dictates of Title IX which, as noted above, provides its own private right of action.”). “Sexual harassment is a form of discrimination on the basis of sex and is actionable under Title IX.” Escue v. Northern OK College, 450 F.3d 1146, 1152 (10th Cir.2006)(discussing sexual harassment of student by teacher)(citing Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992)). “Title IX is enforceable through an implied private right of action for which money damages are available.” Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1245-46 (10th Cir.1999). The Supreme Court has stated however, that “a recipient of federal funds may be liable in damages under Title IX only for its own misconduct.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Furthermore, Title IX does not authorize a cause of action against individuals; rather, it creates a right enforceable against educational institutions only. See Fitzgerald v. Barnstable Sch. Comm., — U.S.-, 129 S.Ct. 788, 796, 172 L.Ed.2d 582 (2009)(“Title IX reaches institutions and programs that receive federal funds ... but it has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals.”); Davis v. Monroe County Bd. of Educ., 526 U.S. at 640-41, 119 S.Ct. 1661 (“The Government’s enforcement power may only be exercised against the funding recipient ... and we have not extended damages liability under Title IX to parties outside the scope of this power.”); Sossamon v. Lone Star State of" }, { "docid": "3132772", "title": "", "text": "facts; and (e) deny the motion if, in light of the above, reasonable jurors could differ as to the conclusions that could be drawn from the evidence. Farley v. Henson, 11 F.3d 827, 831 (8th Cir.1993); McGee v. South Pemiscot Sch. Dist. R-V, 712 F.2d 339, 343 (8th Cir.1983). LIABILITY FOR SEXUAL HARASSMENT UNDER TITLE IX The defendant moves for judgment as a matter of law on the issue of its liability under Title IX for peer student sexual harassment. The defendant contends that plaintiff failed to show that the defendant intentionally discriminated against the plaintiff on the basis of sex. For the reasons stated below, the court grants the defendant’s motion for judgment as a matter of law due to plaintiffs failure to establish an intent to discriminate on the part of the school district. A Title IX of the Education Amendments of 1972 Title IX prohibits discrimination on the basis of gender in educational programs and activities receiving federal financial assistance: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving financial assistance____ 20 U.S.C. § 1681(a) (1995). Courts have interpreted Title IX to prohibit gender discrimination against students enrolled in federally supported educational programs and employees involved in such programs. Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (1995). Under Title IX, an aggrieved individual has an implied right of action, see Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953-54, 60 L.Ed.2d 560 (1979), for both injunctive relief and money damages, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71-73, 112 S.Ct. 1028, 1035-37, 117 L.Ed.2d 208 (1992). Moreover, the Supreme Court has stated that if courts are to give Title IX “the scope that its origins dictate, [they] must accord it a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 1917-18, 72 L.Ed.2d 299 (1982). B. Actionable Peer-to Peer" }, { "docid": "22886321", "title": "", "text": "campus. At UNC’s urging, she spent her senior year at another school and was then awarded a UNC degree. Keller settled her claims and took a dismissal with prejudice. Jennings’s case proceeded to the entry of summary judgment in favor of the defendants. She appealed and a divided panel of this court affirmed the judgment. Jennings v. Univ. of N.C., at Chapel Hill, 444 F.3d 255 (4th Cir.2006). We vacated the panel decision and reheard the case en banc. Our review of the district court’s grant of summary judgment is de novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir.2004) (en banc). II. Jennings claims that UNC discriminated against her in violation of Title IX by allowing Dorrance, the women’s soccer coach, to subject her to severe and pervasive sexual harassment in the women’s soccer program. Title IX provides that “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Discrimination under Title IX includes coach-on-student sexual harassment that creates a hostile environment in a school sports program. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (stating that teacher’s sexual harassment of student is covered by Title IX). A private right of action against the institution is implied under Title IX, Cannon v. Univ. of Chicago, 441 U.S. 677, 709, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and money damages are available as a remedy, Franklin, 503. U.S. at 76, 112 S.Ct. 1028. To establish a Title IX claim on the basis of sexual harassment, a plaintiff must show that (1) she was a student at an educational institution receiving federal funds, (2) she was subjected to harassment based on her sex, (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity, and (4) there is a basis for imputing liability to the institution. See Frazier" }, { "docid": "7272040", "title": "", "text": "MEMORANDUM OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT TUNHEIM, District Judge. Karle Erickson was a tenured professor and a choir director at Gustavus Adolphus College (“College”) until he was dismissed by the College for violating its Sexual Harassment Policy through his sexual contact with a student, plaintiff Jennifer Cooper. Cooper has settled and dismissed her claims against both defendants. The remaining claims are those of Erickson against the College and its President for violation of Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §§ 1681, et seq., breach of contract, defamation, and tortious interference with contract. Cross-motions for summary judgment are before the Court. For the reasons set forth below, the Court grants summary judgment on all of the motions of the College and its President, except for certain contract claims. I. Title IX Claims Erickson brings claims under Title IX, alleging both that the procedural unfairness of his dismissal process and its contamination with gender bias are actionable under Title IX. He has not brought any claims under Title VII of the Civil Rights Act of 1964. Title IX prohibits sex discrimination on the part of educational programs that receive federal funds. The remedy for discrimination explicitly set forth in the statute is the denial of federal funding. The courts have recognized an implied cause of action on behalf of students and prospective students who are discriminated against in education. Franklin v. Gwinnett County, Pub. Sck, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct. 1946; 60 L.Ed.2d 560 (1979); Yusuf v. Vassar College, 35 F.3d 709 (2d Cir.1994). Furthermore, a lawsuit under Title IX may challenge the validity of administrative regulations terminating federal funding of an educational institution that discriminated on the basis of sex in employment practices. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) (“Bell”). However, most courts have rejected the theory that employees of an educational institution have an implied cause of action for damages under Title IX. Lakoski v." }, { "docid": "22881453", "title": "", "text": "of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance____” 20 U.S.C. § 1681. The preliminary issues are uncontroversial. It is unquestionable that Doe has a private right of action under Title IX, see Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979), for both injunctive relief and monetary damages. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 72-73, 112 S.Ct. 1028, 1036-37, 117 L.Ed.2d 208 (1992). Further, the “discrimination” prohibition of Title IX encompasses the sexual harassment of a student by a teacher. Id. at 75, 112 S.Ct. at 1037-38. Moreover, the Civil Rights Restoration Act of 1987 expanded the scope of Title IX. See 20 U.S.C. § 1687(2)(A). The Act reads: The Congress finds that — (1) certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon the broad application of title IX ... and (2) legislative action is necessary to restore the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those laws as previously administered. 20 U:S.C. § 1687 (hist, and stat. notes). Thus, Title IX’s application should be accord ed “ ‘a sweep as broad as its language.’ ” See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 1918, 72 L.Ed.2d 299 (1982) (citation omitted). The issue we must decide is one of first impression in this circuit: whether Title VII agency principles apply to sexual harassment cases brought under Title IX. Because Title VII sexual harassment and sexual discrimination principles have been so well litigated, while Title IX has a short historical parentage, courts have and do resort to Title VII standards to resolve sexual harassment claims brought under Title IX. See, e.g., Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996); Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir.1995); Preston v. Commonwealth of Virginia ex rel. New River Community College, 31 F.3d 203 (4th Cir.1994); Lipsett v. University of Puerto Rico, 864 F.2d" }, { "docid": "22886393", "title": "", "text": "Jennings deeply desired to'be a member of the team. When she was cut for reasons unrelated to sexual banter, she was shocked and profoundly disappointed. At bottom, Jennings made genuine complaints about vulgar sexual banter, but there were no complaints that the sexual banter denied her educational benefits. Therefore Jennings did not make out a Title IX claim. Before conducting the analysis demanded by Title IX, a review of the statute’s requirements is necessary. This is particularly so because the majority has misdes-cribed the requirements of a Title IX claim, omitting the core requirement that the plaintiff demonstrate that she was denied the benefits of an educational program or activity on the basis of sex. See ante at 695. Title IX prohibits an educational institution that receives federal funds from engaging in sex-based discrimination. The statute provides, with certain exceptions not at issue here, that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). While Title IX does not, by its terms, create a private cause of action against the funding recipient, the Supreme Court has implied one, see Cannon v. Univ. of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and it has held that money damages are available in such suits, Franklin v. Gwinnett County Pub. Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). The damages remedy will lie against the funding recipient, however, only when “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [funding] recipient’s behalf has actual knowledge of discrimination in the recipient’s programs” and responds with “deliberate indifference to the discrimination.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). As with Title VII, “sexual harassment” under Title IX is a form of “discrimination.” See Franklin, 503 U.S. at 74-75, 112 S.Ct. 1028. In" }, { "docid": "12640657", "title": "", "text": "Department of Education promulgated regulations which prohibit federally funded education programs from discriminating on the basis of gender with respect to employment. Any education program or activity that receives Federal financial assistance or benefits from the assistance is subject to the Department’s regulations. Defendants argue that Mabry’s claim of sex discrimination under Title IX is not actionable under the facts of this case because the instructional program areas in which Mabry taught (physical education, speech, and health) were not education programs or activities that received federal financial assistance within the meaning of Title IX (20 U.S.C. §§ 1681 and 1682). Title 20 U.S.C. § 1681 in relevant part states the following: § 1681, Prohibition against sex discrimination — Exceptions (a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance____ The U.S. Supreme Court has declared that the anti-discrimination provision of § 1681 is program-specific in character; that coverage of Title IX is limited to a particular entity and program receiving federal financial assistance. See North Haven Board of Education v. Bell, 456 U.S. 512, 535-39, 102 S.Ct. 1912, 1926-27, 72 L.Ed.2d 299, 317-19 (1982). In North Haven, supra, petitioners disputed the department’s authority to regulate any employment practices. The Supreme Court held that employment practices could be regulated if the employees directly participated in federal programs or directly benefited from federal grants, loans, or contracts. The Court, however, declined to define “program” within the meaning of Title IX. Mabry’s argument rests on the inference that, because physical education classes and other classes she taught were part of the core requirements for all persons receiving degrees in the programs that were benefited by federal financial assistance, coverage under Title IX should be extended to this case. In Grove City v. Bell, — U.S.-, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), it was held that Title IX coverage was not foreclosed simply because federal funds are granted to students rather than to the college’s." }, { "docid": "1952349", "title": "", "text": "Court’s decision in Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir.1995) (holding that Title VII standards should govern a university’s liability for a dental student’s claim of hostile environment sexual harassment brought under Title IX), the district court concluded that Iona should not be liable for Palma’s conduct. First, the district court concluded that Palma had not acted with actual or apparent authority to harass the plaintiffs, nor was he aided in the harassment by the existence of the agency relationship. Therefore, the district court concluded that no liability should attach to Iona on that basis. See 914 F.Supp. at 1024. Next, the district court analyzed whether Iona “provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.” Id. The district court determined that Iona did provide a reasonable avenue of complaint via its sexual harassment policy. Further, it found that “[ijmmediately upon receiving notice, the College responded to these cases promptly, effectively and sympathetically.” Id. at 1025. Therefore, because it determined that Iona’s response was proper as a matter of law, it granted summary judgment in favor of Iona. See id. II. DISCUSSION This Court reviews the district court’s grant of summary judgment de novo. See Catlin v. Sobol, 93 F.3d 1112, 1116 (2d Cir.1996). A. Standard of Liability Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, prohibits educational institutions receiving federal financial assistance from discriminating against students or employees on the basis of sex. See 20 U.S.C. § 1681(a) ; North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520-34, 102 S.Ct. 1912, 1917-25, 72 L.Ed.2d 299 (1982). When a teacher sexually harasses a student, that teacher ‘““discriminates” on the basis of sex’ ” in violation of Title IX. See Franklin v. Gwinnett County Pub. Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986)). A student may assert a private cause of action for damages directly against an educational" }, { "docid": "1135959", "title": "", "text": "of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977)). IV. Finally, O’Connor argues that the district court erred when, in rejecting her Title IX claim, it held that Peru State did not receive federal funds within the meaning of the statute’s program-specific requirement, as interpreted by the Supreme Court in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984). Title IX prohibits sex discrimination “under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. The federal financial assistance relied upon by O’Connor was a Title III grant, see 20 U.S.C. § 1057 (1982), awarded to Peru State in part for student and faculty research. A central research facility was to be established, and the college then was to select the projects and departments that were to have access to the facility and funds. The district court held that the “program or activity” as to which O’Connor had to show federal funding was the physical education department and that the Title III grant did not constitute federal financial assistance under Title IX because the funds did not go “direct” to the physical education department and because other departments of the college also benefited. The program funded, the court concluded, was only the research grant project itself. O’Connor, 605 F.Supp. at 761. This result is not mandated by Grove City. As the Supreme Court itself has recognized, neither in Grove City nor in its earlier decision in North Haven Board of Education v. Bell, 456 U.S. 512, 540-41, 102 S.Ct. 1912, 1927-28, 72 L.Ed.2d 299 (1982), did it undertake to provide general guidelines as to the proper definition of the “program or activity” receiving federal funds. Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 635-36, 104 S.Ct. 1248, 1255, 79 L.Ed.2d 568 (1984) (case involved discrimination against the handicapped under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982), but the Court expressly looked to cases involving Title IX, which is similarly worded, for guidance). The Court specifically stated in Grove" }, { "docid": "20126862", "title": "", "text": "privileges in the wake of the demotion. Evidence at the hearing indicates that during the 1991-92 and 1992-93 season, for example, incidents occurred during which varsity teams received priority over intercollegiate clubs in practice time and in access to medical trainers. The university also stripped the coaches of the women’s teams of office space, long-distance telephone service and clerical support. Further, the four teams lost “admission preferences” in recruiting freshman. In April 1992, plaintiffs filed suit against Brown. III. Legal Framework A. Title IX Title IX prohibits gender discrimination in education programs or activities receiving federal financial assistance. The statute provides in relevant part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ...” 20 U.S.C. § 1681(a). Plaintiffs assert that Brown receives federal financial assistance, including assistance provided through financial aid. Thus, according to them, the university “is subject to the requirements of Title IX including, inter alia, in its intercollegiate athletic program.” First Amended Complaint at ¶ 24. Brown acknowledges that it receives federal financial assistance, but at the same time does not admit or deny that its athletic program is covered by Title IX. Answer of Brown University, Vartan Gregorian and David Roach at 11 24. Before 1988, it is possible that Brown’s athletic program would have been outside the grasp of Title IX. In Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), the U.S. Supreme Court narrowly construed the phrases “program or activity” contained in the Title IX statute. In that case, the Court did hold that federal student aid monies flowing to students at Grove City College subjected the school’s entire financial aid office to the dictates of Title IX. However, the Court also concluded that the “assumption that Title IX applies to programs receiving a larger share of a school’s own limited resources as a result of federal assistance earmarked for use elsewhere within the institution is inconsistent with" }, { "docid": "1952350", "title": "", "text": "response was proper as a matter of law, it granted summary judgment in favor of Iona. See id. II. DISCUSSION This Court reviews the district court’s grant of summary judgment de novo. See Catlin v. Sobol, 93 F.3d 1112, 1116 (2d Cir.1996). A. Standard of Liability Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, prohibits educational institutions receiving federal financial assistance from discriminating against students or employees on the basis of sex. See 20 U.S.C. § 1681(a) ; North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520-34, 102 S.Ct. 1912, 1917-25, 72 L.Ed.2d 299 (1982). When a teacher sexually harasses a student, that teacher ‘““discriminates” on the basis of sex’ ” in violation of Title IX. See Franklin v. Gwinnett County Pub. Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986)). A student may assert a private cause of action for damages directly against an educational institution for conduct violating Title IX. See id., 503 U.S. at 76, 112 S.Ct. at 1038; Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Murray, 57 F.3d at 248. In Murray, we held that, “in a Title IX suit for gender discrimination based on sexual harassment of a student, an educational institution may be held liable under standards similar to those applied in eases under Title VII.” Murray, 57 F.3d at 249. Under Title VII, an employer may be liable for the conduct of an employee under two circumstances. First, if the employee is the plaintiffs supervisor, and the employee uses “ ‘his actual or apparent authority to further the harassment ... [or] was otherwise aided in accomplishing the harassment by the existence of the agency relationship,’ ” then the employer is liable for the harassment. See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2nd Cir.1995) (quoting Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.1994)). Second, if the employee is a low-level supervisor who does" }, { "docid": "3132773", "title": "", "text": "be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving financial assistance____ 20 U.S.C. § 1681(a) (1995). Courts have interpreted Title IX to prohibit gender discrimination against students enrolled in federally supported educational programs and employees involved in such programs. Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (1995). Under Title IX, an aggrieved individual has an implied right of action, see Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953-54, 60 L.Ed.2d 560 (1979), for both injunctive relief and money damages, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71-73, 112 S.Ct. 1028, 1035-37, 117 L.Ed.2d 208 (1992). Moreover, the Supreme Court has stated that if courts are to give Title IX “the scope that its origins dictate, [they] must accord it a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 1917-18, 72 L.Ed.2d 299 (1982). B. Actionable Peer-to Peer Sexual Harassment Under Title IX In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), the Supreme Court considered a Title IX claim for monetary damages against a school district for its failure to stop the sexual harassment of a student by a teacher. The plaintiff in Franklin alleged that she had been sexually harassed by her high school teacher and that the school district possessed actual knowledge of the teacher’s behavior, but took no action to stop the harassment. The Court acknowledged that “[unquestionably, Title IX placets] on ... [public schools] a duty not to discriminate on the basis of sex.” Franklin, 503 U.S. at 75, 112 S.Ct. at 1037. The Court then drew an analogy between a claim for sexual harassment against a school district under Title IX and a sexual harassment claim against an employer under Title VII. The Court held that just as Title VII creates a cause of action for discrimination on the basis of sex “when a supervisor sexually harasses a subordinate" }, { "docid": "12217714", "title": "", "text": "court concluded that the district court granted summary judgment improvidently, given that a factfinder should determine whether “the benefits represent indirect but significant remuneration ... or inconsequential incidents of an otherwise gratuitous relationship.” Id. at 222. Because the absence of either direct or indirect economic remuneration or the promise thereof is undisputed in this ease, we agree with the district court that O’Connor was not a Rockland employee within the meaning of Title VII and thus that her discrimination claim under that statute must fail. II. Title IX O’Connor’s second argument is that the district court erred in dismissing her Title IX claim in the belief that Title IX did not apply to Rockland because Rockland is not an “education program or activity.” O’Connor urges that because Rockland both receives federal financial assistance either through the state, its patients, or its employees, and also operates “vocational training through an organized educational program,” Appellant’s Brief at 30, it is subject to Title IX’s prohibition against sex discrimination— proscribed conduct that includes sexual harassment. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992); Kracunas, 119 F.3d at 88-89. We disagree. Title IX provides in pertinent part that [n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a). Title IX has been construed to prohibit gender discrimination against students and employees alike in educational institutions that receive federal funding. See Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (2d Cir.1995) (citing North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520-34, 102 S.Ct. 1912, 1917-25, 72 L.Ed.2d 299 (1982)). At issue in the present case is whether an entity such as Rockland that (1) is a state-run clinic that receives federal money, and (2) permits student-interns from a college with which it has no affiliation to perform volunteer field work at its facility, is subject to Title" }, { "docid": "4058591", "title": "", "text": "Title IX right? As noted above, Title IX states that “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... ” 20 U.S.C. § 1681 (emphasis added). The Supreme Court has emphasized that federal courts should accord to Title IX “a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 1917, 72 L.Ed.2d 299 (1982). However, at least two central questions pertinent to plaintiffs’ claim in this case have yet to be directly addressed by the Supreme Court or any circuit court in the section 1983 setting: 1) What is the nature of the right created by Title IX in this context?; and 2) What type of conduct by a defendant amounts to a deprivation of that right? The Court addresses each of these issues in turn below. i. Nature of the Title IX Right in the Sexual Harassment Context In the absence of specific Supreme Court or Ninth Circuit precedent directly addressing this question, the Court must look to Title IX itself and to interpretations of the statute by various courts to determine whether the conduct alleged here amounts to a deprivation of a right secured by Title IX. Federal courts interpreting Title IX have heeded North Haven’s direction to read the statute so as to broadly proscribe discrimination on the basis of sex in the educational setting. See, e.g., Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 77, 112 S.Ct. 1028, 1039, 117 L.Ed.2d 208 (1992) (explaining that Title IX “unquestionably ... placets] on [school districts] the duty not to discriminate on the basis of sex”); Cohen v. Brown Univ., 991 F.2d 888, 894 (1st Cir.1993) (noting that “the statute’s heart is a broad prohibition of gender-based discrimination in all programmatic aspects of educational institutions”); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 833 (10th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 580, 126 L.Ed.2d 478 (referring to “Title IX’s" }, { "docid": "21858", "title": "", "text": "alleges on appeal that the district court erred in not granting her motion for a new trial. Because we find that the instruction regarding welcomeness so tainted the trial, we reverse and remand for a new trial. Analysis Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, prohibits sexual discrimination in educational programs and activities which receive federal funds. Specifically, Title IX provides, in pertinent part, that “[n]o person ... shall, on the basis of sex, be denied the benefits of, or be subjected to any discrimination under any education program ... receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The United States Supreme Court provided for a private right of action against an educational institution under Title IX in Cannon v. University of Chicago, 441 U.S. 677, 694-96, 99 S.Ct. 1946, 1956-58, 60 L.Ed.2d 560 (1979), and granted private litigants the right to recover compensatory damages for a Title IX violation in Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75-77, 112 S.Ct. 1028, 1037-39, 117 L.Ed.2d 208 (1992). We note at the outset that unlike this Court’s recent decision in Smith v. Metro. Sch. Dist. Perry Township, 128 F.3d 1014 (7th Cir.1997), this ease does not present a problem concerning the appropriate defendant to a Title IX action. In Smith, issued two days after oral arguments were heard in this case, a divided panel held that “a school district is liable for teacher-student sexual harassment ‘only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so.’ ” 128 F.3d at 1034 (quoting Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir.1997)). This Court found that the school district was not liable for the sexual harassment by one of its teachers because there was no evidence that a school official knew of the alleged harassment and failed to respond. Id. Here, in contrast, there is sufficient evidence that a school" }, { "docid": "9983074", "title": "", "text": "reasonable inferences and facts in a light most favorable to the nonmoving party.” Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir.1999) (citation omitted). III. EilSCUSSION A. Title IX Claim Title IX provides, in pertinent part, that “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ....” 20 U.S.C. § 1681(a). The Supreme Court has recognized an implied private right of action under Title IX for cases involving intentional sexual discrimination, and it has held money damages are available in such lawsuits. Franklin v. Gwinnett County Public Schs., 503 U.S. 60, 65, 75, 112 S.Ct. 1028, 1032, 1038, 117 L.Ed.2d 208 (1992). The Court also has established that a teacher’s sexual harassment of a student constitutes actionable discrimination for the purposes of Title IX. Id. at 74-76, 112 S.Ct. at 1037-38; see also Davis, 233 F.3d at 1371. Our analysis in cases involving teacher-on-student sexual harassment is governed by the Supreme Court’s decision in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In Gebser, the Supreme Court held a school district will not be liable in damages under Title IX for teacher-on-student sexual harassment “unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Id. at 277, 118 S.Ct. at 1993. The Court defined the deliberate indifference standard as “an official decision by the recipient [of federal funds] not to remedy the violation.” Id. at 290, 118 S.Ct. at 1999. Although it reached the correct conclusion, the district court relied on the legal standard applicable in Title IX claims based on student-on-student sexual harassment. The Supreme Court has applied a more rigorous standard when a Title IX plaintiff seeks damages against a school district for student-on-student harassment. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650-53, 119 S.Ct." }, { "docid": "10662242", "title": "", "text": "party “treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (emphasis added). Thus, the reason that scheduling differences properly receive disparate treatment analysis based on facial discrimination is not just because boys and girls are separated, but because they are separated and treated unequally in the scheduling of seasons. In sum, MHSAA has failed to satisfy its burden of justifying its discriminatory scheduling practices under V.M.I. We therefore uphold the district court’s grant of relief to CFE on the equal protection claim. D. Title IX 1. Applicability of Title IX Title IX, enacted as part of the Education Amendments of 1972, proscribes gender discrimination (with certain exceptions not applicable here) in educational programs receiving federal financial assistance. 20 U.S.C. § 1681(a). The statute provides, in pertinent part, that [n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance Before Title IX was amended by the Civil Rights Restoration Act in 1987, the statute was construed by the Supreme Court in Grove City College v. Bell, 465 U.S. 555, 574-75, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), as being program specific, meaning that Title IX was interpreted as not providing institution-wide coverage. See also Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265, 271 (6th Cir.1994) (recounting the history of Title IX). Congress responded to the Supreme Court’s holding in Bell by adding § 1687 to Title IX, which provides in pertinent part as follows: For the purposes of this chapter, the term “program or activity” and “program” mean all of the operations of— (2)(B) a local educational agency, system of vocational education, or other school system; ... any part of icihich is extended Federal financial assistance. Horner, 43 F.3d at 271 (quoting 20 U.S.C. § 1687) (emphasis added by the court). The legislative history concerning" }, { "docid": "12217715", "title": "", "text": "Gwinnett County Pub. Schs., 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992); Kracunas, 119 F.3d at 88-89. We disagree. Title IX provides in pertinent part that [n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a). Title IX has been construed to prohibit gender discrimination against students and employees alike in educational institutions that receive federal funding. See Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (2d Cir.1995) (citing North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520-34, 102 S.Ct. 1912, 1917-25, 72 L.Ed.2d 299 (1982)). At issue in the present case is whether an entity such as Rockland that (1) is a state-run clinic that receives federal money, and (2) permits student-interns from a college with which it has no affiliation to perform volunteer field work at its facility, is subject to Title IX on the ground that it operates an “education program or activity.” In Grove City College v. Bell, 465 U.S. 555, 571-75, 104 S.Ct. 1211, 1220-22, 79 L.Ed.2d 516 (1984) the Supreme Court considered the meaning of Title IX’s phrase “education program or activity” and defined it narrowly, holding that by referring to particular activities or programs, Congress intended that Title IX apply only to the particular program receiving financial assistance. Thus, in Grove City, the Court found that the receipt by students of federal grants did not trigger institution-wide Title IX coverage, but only coverage of the school’s financial aid program. Id. at 573-74, 104 S.Ct. at 1221-22. In response to the Court’s interpretation of Title IX, as well as out of concern that the Grove City definition of “program or activity” would be applied to similar language contained in § 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and Title VI of the Civil Rights Act of 1964, Congress passed the Civil Rights Restoration Act of 1987, Pub.L." } ]

[ { "docid": "4064185", "title": "", "text": "of. Further, Roach wired money to Watts while she was in Canada to rent the vehicles that she used to transport the firearms. Lastly, a substantial amount of evidence was presented at trial that Roach transmitted money through wire transactions to facilitate illegal activity or that was the proceeds of illegal activity. Although the facts do not establish that the $900 Nnadi wired to Watts came directly from illegal activity that Roach knew of, there was ample circumstantial evidence to allow a reasonable jury to draw such an inference. Thus, the district court did not err in denying Roach’s motion for judgment of acquittal. III. Roach’s Sentencing Offense Level We review “objections to sentencing calculation issues raised for the first time on appeal for plain error.” United States v. Bennett, 472 F.3d 825, 831 (11th Cir.2006) (citing United States v. Harness, 180 F.3d 1232, 1234 (11th Cir.1999)). “This standard requires that there be error, that the error be plain, and that the error affect a substantial right.” Id. at 831. “A substantial right is affected if the appealing party can show that there is a reasonable probability that there would have been a different result had there been no error.” Id. at 831-32. “If these three conditions are met, then we may exercise our discretion to notice the forfeited error if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 832. Here, Roach’s base offense level was 24. His offense level was increased by two levels for his conviction of a money laundering offense, and his leadership role in the crimes resulted in a four-level enhancement, leaving Roach’s correct offense level as 30. However, the district court miscalculated Roach’s total offense level as 31. A total offense level of 31 resulted in a recommended Guidelines range of 108 to 135 months’ imprisonment. Under the correct offense level of 30, Roach’s Guidelines range would have been 97 to 121 months. His sentence of 135 months was at the high end of the Guidelines range under an offense level of 31, but outside of the Guidelines" } ]

[ { "docid": "22465821", "title": "", "text": "the district court’s selection of the sentence imposed. Id. at 203, 112 S.Ct. 1112. Accordingly, we will remand for resentencing “unless [we] conclude on the record as a whole ... that the error did not affect the district court’s selection of the sentence imposed.” Id. We submit that the improper calculation of the Guidelines range can rarely be shown not to affect the sentence imposed. In the typical case in which an error in the calculating of Sentencing Guidelines has been held harmless, the sentence was dictated not by the erroneously calculated Guideline, but by a statutory minimum or maximum or another properly calculated Guideline. United States v. Frazier, 213 F.3d 409, 417-18 (7th Cir.2000) (finding that the sentencing court’s miscalculation of the defendant’s criminal history category was irrelevant to the sentence imposed because his offense level carried a life sentence); see also United States v. Wilken, 498 F.3d 1160 (10th Cir.2007) (holding that the erroneous application of an enhancement did not affect the district court’s selection of the sentence imposed because defendant qualified as a career offender and as such was subject to categorically prescribed offense and criminal history levels); United States v. Long Soldier, 431 F.3d 1120, 1121 (8th Cir.2005) (“The district court’s erroneous belief that it could not depart upward did not deprive Long Soldier of any substantial-or even beneficial-right. He was deprived merely of the opportunity to receive an upward departure and, perhaps, a longer sentence. As such, any error is harmless.... ”). In such cases, although an error was made, it could not have impacted the ultimate sentence. The government contends that a sentencing error is also harmless where, as here, the sentence imposed falls into the “overlap” between the incorrect Guidelines range used by the sentencing court and the correct Guidelines range. Although some courts have adopted an “overlapping range” rationale, we conclude that such an “overlap” does not necessarily render an error in the Guidelines calculation harmless. Such an overlap, alone, proves too little. The record must show that the sentencing judge would have imposed the same sentence under a correct Guidelines range," }, { "docid": "17024831", "title": "", "text": "S.Ct. 1338, 1345, 194 L.Ed.2d 444 (2016). The Government, however, “remains free to point to parts of the record — including relevant statements by the judge — to counter any ostensible showing of prejudice the defendant may make.” Id. at 1347 (quotation marks and alterations omitted). Accordingly, “in the ordinary case a defendant will satisfy his burden to show prejudice by pointing to the application of an incorrect, higher Guidelines range and the sentence he received thereunder. Absent unusual circumstances, he will not be required to show more.” Id. Despite conceding that Calabretta is no longer a career offender, the Government maintains that the error did not affect Calabretta’s substantial rights. The Government points to the District Court’s downward variance and the District Court’s explanation that “ ‘a sentence of 120 months ... is the minimum sentence sufficient to secure the purposes of sentencing that are set forth in [section] 3553’ ” as indications that the District Court would have imposed the same sentence irrespective of the Guidelines range. See Gov’t Letter Pursuant to Fed. R. App. P. 28(j) (July 28, 2015) (quoting App. 143). We disagree with the Government’s contentions. The record in this case does not “show ... that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range.” Molina-Martinez, 136 S.Ct. at 1346. There are indications in the record that the application of the career offender enhancement did affect Calabretta’s sentence. The District Court placed significant emphasis on Calabretta’s criminal history and his lack of “reform.” App. 141-43. The sentencing court noted that Calabretta was “not a stranger to the criminal justice system,” that he “should have learned [his] lesson” from his prior convictions, and that his eluding conviction, in particular, “compounded” his lack of reform. App. 141. After focusing on Calabretta’s prior convictions, the District Court indicated its belief that “a very substantial sentence is required,” in part, “to get through to [Cal-abretta] that if [he] thought [he] had reformed, reforming by becoming a drug dealer is not reforming.” App. 142. We do not think any of those observations inapt, but" }, { "docid": "22466046", "title": "", "text": "substantial rights.” Blocker, 612 F.3d at 416. This default (or presumption) is undeniably sensible, because the defendant is still sentenced within the applicable Guidelines range. Mudekunye’s case does not neatly fall into either line of precedent. The correct and incorrect sentencing ranges overlap by one month, but he was sentenced well outside the one month overlap, 19 months above the correct range. No published cases have addressed the same fact scenario, but in an unpublished case, United States v. Carrizales-Jaramillo, we remanded for resentencing in a similar situation. 303 Fed.Appx. 215, 217 (5th Cir.2008) (per curiam) (unpublished) (vacating a 31-month imposed sentence based on an incorrect Guidelines calculation of 30-37 months rather than 24-30 months). While this case is not binding, it is persuasive and supports the conclusion that the reasoning applicable to our “no overlap” line of cases best applies here. That is, where it is “not apparent from the record that [the defendant] would have received an above-Guidelines sentence,” the imposed sentence affects the defendant’s substantial rights. John, 597 F.3d at 285 (holding that a sentence 21 months above the high end and 38 months above the low end of the correct Guidelines range violated the defendant’s substantial rights). It is not apparent from the record that Mudekunye would have received an above-Guidelines sentence of 97 months if the district court had calculated the Guidelines correctly. See John, 597 F.3d at 285. The sentencing judge stated that Mudekunye’s “sentence happens to be within the Guideline range” and that it “is the appropriate sentence in this case given all of the facts and circumstances.” The government argues that these phrases indicate that the court would have imposed the same sentence regardless of the correct Guidelines range. We cannot arrive at the same conclusion. The court’s comments are vague and ambiguous, in contrast to other cases in which we have held that the court’s statements eliminate any reasonable probability of a lesser sentence. In these cases, the sentencing court stated explicitly and unequivocally that the imposed sentence was the correct sentence regardless of the applicable Guideline ranges. See United States" }, { "docid": "22494647", "title": "", "text": "assume, in the absence of additional evidence, that the sentence [imposed] affects a defendant's substantial rights.' \" 588 Fed.Appx. 333, 335 (C.A.5 2014) (per curiam ); see also United States v. Blocker, 612 F.3d 413, 416 (C.A.5 2010). Molina-Martinez, the court ruled, had not put forth the additional evidence necessary to show that the error affected his substantial rights. \"The mere fact that the court sentenced Molina-Martinez to a low-end sentence,\" the Court of Appeals reasoned, \"is insufficient on its own to show that Molina-Martinez would have received a similar low-end sentence had the district court used the correct Guidelines range.\" 588 Fed. Appx., at 335. Instead, Molina-Martinez needed to identify \" 'additional evidence' \" in the record showing that the Guidelines had an effect on the District Court's selection of his sentence. Ibid. The court noted that \"the district court made no explicit statement suggesting that the Guidelines range was a primary factor in sentencing.\" Ibid. And the court did not view as probative \"the parties' anchoring of their sentencing arguments in the Guidelines\" or \"the district court's refusal to grant the government's request for a high-end sentence of 96 months.\" Ibid. This Court granted certiorari to resolve the disagreement among Courts of Appeals over how to determine whether the application of an incorrect Guidelines range at sentencing affected the defendant's substantial rights. See 576 U.S. ----, 136 S.Ct. 26, 192 L.Ed.2d 998 (2015). III The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect. Nothing in the text of Rule 52(b), its rationale, or the Court's precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings. This is so even if the ultimate sentence falls within both the correct and incorrect range. When a defendant is sentenced under an incorrect Guidelines range-whether or not the" }, { "docid": "22494652", "title": "", "text": "then, the systemic function of the selected Guidelines range will affect the sentence. This fact is essential to the application of Rule 52(b) to a Guidelines error. From the centrality of the Guidelines in the sentencing process it must follow that, when a defendant shows that the district court used an incorrect range, he should not be barred from relief on appeal simply because there is no other evidence that the sentencing outcome would have been different had the correct range been used. In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome. And, again in most cases, that will suffice for relief if the other requirements of Rule 52(b) are met. There may be instances when, despite application of an erroneous Guidelines range, a reasonable probability of prejudice does not exist. The sentencing process is particular to each defendant, of course, and a reviewing court must consider the facts and circumstances of the case before it. See United States v. Davila, 569 U.S. ----, ----, 133 S.Ct. 2139, 2149, 186 L.Ed.2d 139 (2013) (\"Our essential point is that particular facts and circumstances matter\"). The record in a case may show, for example, that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range. Judges may find that some cases merit a detailed explanation of the reasons the selected sentence is appropriate. And that explanation could make it clear that the judge based the sentence he or she selected on factors independent of the Guidelines. The Government remains free to \"poin[t] to parts of the record\"-including relevant statements by the judge-\"to counter any ostensible showing of prejudice the defendant may make.\" United States v. Vonn, 535 U.S. 55, 68, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Where, however, the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court's reliance on an incorrect range in most instances will suffice to show an effect on the" }, { "docid": "22494654", "title": "", "text": "defendant's substantial rights. Indeed, in the ordinary case a defendant will satisfy his burden to show prejudice by pointing to the application of an incorrect, higher Guidelines range and the sentence he received thereunder. Absent unusual circumstances, he will not be required to show more. The Court of Appeals' rule to the contrary fails to take account of the dynamics of federal sentencing. In a significant number of cases the sentenced defendant will lack the additional evidence the Court of Appeals' rule would require, for sentencing judges often say little about the degree to which the Guidelines influenced their determination. District courts, as a matter of course, use the Guidelines range to instruct them regarding the appropriate balance of the relevant federal sentencing factors. This Court has told judges that they need not provide extensive explanations for within-Guidelines sentences because \"[c]ircumstances may well make clear that the judge rests his decision upon the Commission's own reasoning.\" Rita, 551 U.S., at 356-357, 127 S.Ct. 2456. In these situations, reviewing courts may presume that a sentence imposed within a properly calculated Guidelines range is reasonable. Id., at 341, 127 S.Ct. 2456. As a result, the cases where the Guidelines are most likely to have influenced the district court's sentencing decision-those where the court chose a sentence within what it believed to be the applicable Guidelines range-are also the cases least likely to provide the defendant with evidence of the Guidelines' influence beyond the sentence itself. The defendants in these cases should not be prevented by a categorical rule from establishing on appeal that there is a reasonable probability the Guidelines range applied by the sentencing court had an effect on their within-Guidelines sentence. B This case illustrates the unworkable nature of the Court of Appeals' additional evidence rule. Here the court held that Molina-Martinez could not establish an effect on his substantial rights. Yet the record points to a different conclusion. The District Court said nothing specific about why it chose the sentence it imposed. It merely \"adopt[ed] the ... guideline applications in the presentence investigation report,\" App. 33, which set the" }, { "docid": "10085155", "title": "", "text": "638 Fed.Appx. 172, 178 & n.14 (3d. Cir. 2015) (invalidating the Guidelines’ residual clause after Johnson without extended discussion of whether the vagueness doctrine applies). One circuit has declined to apply Johnson to the Guidelines. See United States v. Matchett, 802 F.3d 1185, 1194-95 (11th Cir. 2015). C. Remedy For both Hurlburt and Gillespie, the Johnson error produced a Guidelines range that was too high. That’s ordinarily enough to satisfy the prejudice requirement of plain-error review. To establish that the error affected their substantial rights, the defendants must show “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Molina-Martinez, 136 S.Ct. at 1343, (internal quotation marks omitted). “When a defendant is sentenced under an incorrect Guidelines range[,] ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Id. at 1345 (emphasis added). This is because the Guidelines “inform and instruct the district court’s determination of an appropriate sentence. In the usual case, then, the systemic function of the selected Guide lines range will affect the sentence.” Id. at 1346. Hurlburt’s 72-month sentence fell below the original Guidelines range but is above the correctly calculated range once the Johnson error is removed. The same is true of Gillespie’s 84-month sentence. The defendants request full remand for resen-tencing. The government argues for a limited remand akin to the procedure we adopted in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for Booker errors. Paladino fashioned a “limited remand to permit the sentencing judge to determine whether he would (if required to resen-tence) reimpose his original sentence.” Id. at 484. But we’ve generally rejected the Paladino-style limited-remand procedure when the sentencing error involves a miscalculation of the defendant’s Guidelines range. See United States v. Williams, 742 F.3d 304 (7th Cir. 2014). “When a district court incorrectly calculates the [G]uide-line[s] range, we normally presume the improperly calculated [G]uideline[s] range influenced the judge’s choice of sentence, unless he says otherwise.” United States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014). Neither" }, { "docid": "22466045", "title": "", "text": "reasonable probability that he would have received a lesser sentence when (1) the district court mistakenly calculates the wrong Guidelines range, (2) the incorrect range is significantly higher than the true Guidelines range, and (3) the defendant is sentenced within the incorrect range. See, e.g., John, 597 F.3d at 284-85 (holding that an imposed sentence affects a defendant’s substantial rights when it significantly exceeds the high- and low-ends of applicable Guidelines range); United States v. Jasso, 587 F.3d 706, 713 n. 10 (5th Cir.2009) (“In cases where this Court has found plain error, the gap between the correct and erroneous sentences has been sufficient enough that there was an apparent, reasonable probability that the defendant would have received a lesser sentence but for the district court’s error.”) (collecting cases). There is a second line of precedent relevant to this case. These cases hold that when the correct and incorrect ranges overlap and the defendant is sentenced within the overlap, “we do not assume, in the absence of additional evidence, that the sentence affects a defendant’s substantial rights.” Blocker, 612 F.3d at 416. This default (or presumption) is undeniably sensible, because the defendant is still sentenced within the applicable Guidelines range. Mudekunye’s case does not neatly fall into either line of precedent. The correct and incorrect sentencing ranges overlap by one month, but he was sentenced well outside the one month overlap, 19 months above the correct range. No published cases have addressed the same fact scenario, but in an unpublished case, United States v. Carrizales-Jaramillo, we remanded for resentencing in a similar situation. 303 Fed.Appx. 215, 217 (5th Cir.2008) (per curiam) (unpublished) (vacating a 31-month imposed sentence based on an incorrect Guidelines calculation of 30-37 months rather than 24-30 months). While this case is not binding, it is persuasive and supports the conclusion that the reasoning applicable to our “no overlap” line of cases best applies here. That is, where it is “not apparent from the record that [the defendant] would have received an above-Guidelines sentence,” the imposed sentence affects the defendant’s substantial rights. John, 597 F.3d at 285 (holding" }, { "docid": "12148276", "title": "", "text": "if the error was not plain at sentencing, it is plain now. See Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (concluding that when there is “no doubt that if petitioner’s trial occurred today, the failure ... would be an error,” this error is “plain”); cf. United States v. Stinson, 734 F.3d 180, 187 (3d Cir. 2013) (finding the error was clear in light of the plain language of the relevant Guidelines provision, despite the issue being one of first impression). We also hold, and the government does not contest, that this error affected substantial rights. Generally, “[i]t 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. But “[w]hen a defendant is sentenced under an incorrect Guidelines range — whether or not the defendant’s ultimate sentence falls within the correct range — the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez, — U.S. -, 136 S.Ct. 1338, 1345, 194 L.Ed.2d 444 (2016); see also United States v. Knight, 266 F.3d 203, 207 (3d Cir. 2001) (“[A]n error in application of the Guidelines that results in [the] use of a higher sentencing range should be presumed to affect the defendant’s substantial rights.”). The government can rebut this presumption if it can show “that the judge based the sentence he or she selected on factors independent of the Guidelines.” Molina-Martinez, 136 S.Ct. at 1347. Here, the sentencing judge referenced the initial guideline range, stating “I find no basis to vary downward from the advisory sentencing guidelines.” J.A. 101. Therefore, we cannot conclude, as would be required to affirm, “that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range.” Molina-Martinez, 136 S.Ct. at 1346. Nor can we conclude “that the sentencing court would have imposed the same sentence regardless of the [sex] offender designation” because “[t]o assume so — particularly when the record suggests that [the offender designation] played a" }, { "docid": "22466044", "title": "", "text": "category of I, the application of the enhancement resulted in an advisory sentencing range of 78 to 97 months. The correct Guidelines range is 63 to 78 months. See U.S.S.G. Ch. 5 Pt. A (Sentencing Table). The incorrect Guidelines range (78-97 months) and the correct Guidelines range (63-78 months) overlap by one month as the top of the correct range and the bottom of the incorrect range are the same: 78 months. b. To satisfy the third prong of plain-error review, the error must have affected the defendant’s substantial rights, which ordinarily requires the defendant to show that the error “affected the outcome of the district court proceedings.” United States v. John, 597 F.3d 263, 284 (5th Cir.2010) (quotation omitted). A sentencing error affects a defendant’s substantial rights if he can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence. United States v. Blocker, 612 F.3d 413, 416-17 (5th Cir.2010). Our precedent is clear that absent additional evidence, a defendant has shown a reasonable probability that he would have received a lesser sentence when (1) the district court mistakenly calculates the wrong Guidelines range, (2) the incorrect range is significantly higher than the true Guidelines range, and (3) the defendant is sentenced within the incorrect range. See, e.g., John, 597 F.3d at 284-85 (holding that an imposed sentence affects a defendant’s substantial rights when it significantly exceeds the high- and low-ends of applicable Guidelines range); United States v. Jasso, 587 F.3d 706, 713 n. 10 (5th Cir.2009) (“In cases where this Court has found plain error, the gap between the correct and erroneous sentences has been sufficient enough that there was an apparent, reasonable probability that the defendant would have received a lesser sentence but for the district court’s error.”) (collecting cases). There is a second line of precedent relevant to this case. These cases hold that when the correct and incorrect ranges overlap and the defendant is sentenced within the overlap, “we do not assume, in the absence of additional evidence, that the sentence affects a defendant’s" }, { "docid": "17024851", "title": "", "text": "ways” by “attempting to undertake such a prediction [of what the District Court will do on remand] while, at the same time, arguing that [the dissent is] undergoing a speculative analysis” of its own. Dissent Op. at 146-47. We are not speculating about the District Court’s actions. The dissent, however, reads such certainty into this scant record that it would lead to affirmance of a 120-month sentence despite a significant Guideline miscalculation. Our position is that any prediction of what the District Court would have done about sentencing if it had calculated the Guidelines correctly necessarily calls for speculation and that is the very reason there must be a remand. As noted earlier, the Supreme Court recently instructed that such uncertainty weighs in favor of re-sentencing, not affirmance. See Molina-Martinez, 136 S.Ct. at 1347 (\"Where ... the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court's reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights. Indeed, in the ordinary case a defendant will satisfy his burden to show prejudice by pointing to the application of an incorrect, higher Guidelines range and the sentence he received thereunder. Absent unusual circumstances, he will not be required to show more.”). The uncertainty here should be resolved by the District Court. FISHER, Circuit Judge, dissenting. The majority holds that Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), invalidates the residual clause of United States Sentencing Guideline § 4B1.2, removing Michael Calabretta’s status as a career offender. I agree with this portion of the majority’s opinion. But, that is where my agreement with the majority ends, as based on the sentencing record, the majority also finds that the District Court plainly erred when it considered Calabretta’s now-removed career offender status in imposing its sentence. Though I agree that Johnson should apply in this case and that Calabretta no longer meets the career offender criteria, I disagree that the District Court’s careful and thoughtful analysis at sentencing,' which" }, { "docid": "22465823", "title": "", "text": "that is, that the sentencing Guidelines range did not affect the sentence actually imposed. The overlap may be helpful, but it is the sentencing judge’s reasoning, not the overlap alone, that will be determinative. In United States v. Knight, we made clear that we do not agree that an overlap between ranges renders an error harmless. 266 F.3d 203 (3d Cir.2001). In Knight, the District Court erroneously calculated the Guidelines range as 151 to 188 months and imposed a 162-month sentence that fell within the correct Guidelines range of 140 to 175 months. Id. at 205. Under the exacting plain error standard, we held that “application of an incorrect Federal Sentencing Guidelines range presumptively affects substantial rights, even if it results in a sentence that is also within the correct range.” Id.; see also United States v. Wood, 486 F.3d 781, 790-91 (3d Cir.2007) (relying on Knight post -Booker and vacating and remanding); United States v. Felton, 55 F.3d 861, 869 n. 3 (3d Cir.1995) (“This circuit and others have found that the miscalculation of a defendant’s offense level ‘certainly is error that seriously affeet[s] the defendant’s rights, and so amounts to plain error.’ ”) (citation omitted); United States v. Pollen, 978 F.2d 78, 90 (3d Cir.1992) (“The district court’s improper calculation ..., resulting in a significantly higher Guideline sentencing range, certainly is an error that seriously affected [defendant’s substantial rights and so amounts to plain error”). We reviewed numerous cases wherein our sister courts of appeals similarly concluded that the selection of an incorrect Guidelines range was plain error even though the actual sentence happened to fall within the correct Guidelines range. Id. at 208-10. Recognizing that some cases had been to the contrary, we decided that our case law was more sound in that it better protects the defendant’s right to a sentence “imposed pursuant to correctly applied law” and “better effectuates the Guidelines’ purpose to institute fair and uniform sentencing.” Id. at 210. We reviewed the record and determined that “we would be unable to conclude that it is even reasonably likely that the same sentence would" }, { "docid": "22309054", "title": "", "text": "the Guidelines are intended to, and do, affect sentencing. Indeed, that is their very raison d’etre. Second, absent a fortuitous comment by the sentencing judge on the record, it is very difficult to ascertain the impact of an erroneous Guidelines range. We therefore conclude that an error in application of the Guidelines that results in use of a higher sentencing range should be presumed to affect the defendant’s substantial rights. Although we have not previously had occasion to address the element of prejudice where a sentence falls within both the correct and incorrect Guidelines ranges, our holding today is in keeping with our prior cases that have recognized the potentially prejudicial nature of Guideline calculation errors. See United States v. Pollen, 978 F.2d 78, 90 (3d Cir.1992) (“The district court’s improper calculation ..., resulting in a significantly higher Guideline sentencing range, certainly is an error that seriously affected [defendant]^ substantial rights and so amounts to plain error.”); United States v. Felton, 55 F.3d 861, 869 n. 3 (3d Cir.1995) (“This circuit and others have found that the miscalculation of a defendant’s offense level ‘certainly is error that seriously affect[s] the defendant’s rights, and so amounts to plain error.’ ”) (quoting Pollen, 978 F.2d at 90). The practical effect of the presumption we recognize today is that a sentence based upon a plainly erroneous Guideline range will ordinarily be remanded so that the District Court may exercise its discretion to choose an appropriate sentence based upon the correct range, unless the record shows that the sentence was unaffected by the error. This approach effectuates the intent of the Act that “it [be] the prerogative of the district court, not the court of appeals, to determine, in the first instance, the sentence that should be imposed in light of certain factors properly considered under the Guidelines.” Williams, 503 U.S. at 205, 112 S.Ct. 1112. We applied similar reasoning in the plain error context in Pollen, wherein we “declinefd] to engage in the type of speculation urged by the government concerning whether the district court would have [imposed the same sentence] under a" }, { "docid": "17024830", "title": "", "text": "see Maurer, 639 F.3d at 78 n. 4, and we have held that Supreme Court cases construing ACCA “bind our analysis” of the career offender Guideline, Marrero, 743 F.3d at 394 n. 2. Therefore, as Johnson was decided while Calabretta’s appeal was pending, and as our 'Court has consistently construed the career offender Guideline similarly to ACCA, the error here is plain. D. Third, the error affected Calabretta’s substantial rights. “[T]o have affected a defendant’s substantial rights, a plain error must have caused the defendant prejudice, in that it ‘affected the outcome of the district court proceedings.’ ” United States v. Tann, 577 F.3d 533, 538 (3d Cir. 2009) (quoting Piano, 507 U.S. at 734, 113 S.Ct. 1770). The Supreme Court recently held that “[wjhen a defendant is sentenced under an incorrect Guidelines range— whether or not the defendant’s ultimate sentence falls within the correct range— the error can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1345, 194 L.Ed.2d 444 (2016). The Government, however, “remains free to point to parts of the record — including relevant statements by the judge — to counter any ostensible showing of prejudice the defendant may make.” Id. at 1347 (quotation marks and alterations omitted). Accordingly, “in the ordinary case a defendant will satisfy his burden to show prejudice by pointing to the application of an incorrect, higher Guidelines range and the sentence he received thereunder. Absent unusual circumstances, he will not be required to show more.” Id. Despite conceding that Calabretta is no longer a career offender, the Government maintains that the error did not affect Calabretta’s substantial rights. The Government points to the District Court’s downward variance and the District Court’s explanation that “ ‘a sentence of 120 months ... is the minimum sentence sufficient to secure the purposes of sentencing that are set forth in [section] 3553’ ” as indications that the District Court would have imposed the same sentence irrespective of the Guidelines range. See Gov’t Letter Pursuant to Fed." }, { "docid": "17024850", "title": "", "text": "criminal defendant. See United States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006) (\"[W]e hold that district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in § 3553(a)(2).”). Merely quoting this language should not insulate a sentence from harmless error or plain error review. The District Court never indicated that it would have imposed the same sentence regardless of Calabretta’s career offender status. Rather, the District Court imposed what it determined was the \"minimum sentence sufficient” in considering the section 3553(a) factors — which includes \"the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines.” 18 U.S.C. § 3553(a)(4)(A). Thus, if the District Court were applying the section 3553(a) factors as is statutorily required, then its calculation of the \"minimum sentence sufficient” necessarily included consideration of the recommended Guidelines range, including Calabretta's career offender status. . Our dissenting colleague suggests that we are trying to \"have it both ways” by “attempting to undertake such a prediction [of what the District Court will do on remand] while, at the same time, arguing that [the dissent is] undergoing a speculative analysis” of its own. Dissent Op. at 146-47. We are not speculating about the District Court’s actions. The dissent, however, reads such certainty into this scant record that it would lead to affirmance of a 120-month sentence despite a significant Guideline miscalculation. Our position is that any prediction of what the District Court would have done about sentencing if it had calculated the Guidelines correctly necessarily calls for speculation and that is the very reason there must be a remand. As noted earlier, the Supreme Court recently instructed that such uncertainty weighs in favor of re-sentencing, not affirmance. See Molina-Martinez, 136 S.Ct. at 1347 (\"Where ... the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court's reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s" }, { "docid": "22466048", "title": "", "text": "v. Bonilla, 524 F.3d 647, 656 (5th Cir.2008) (finding that district court imposed a valid alternative non-Guidelines sentence when it considered the correct and incorrect ranges and stated: “I believe that I have calculated the guidelines correctly, but even if I am wrong about the guidelines, this is the sentence that I would impose in any event.”); United States v. Lemus-Gonzalez, 563 F.3d 88, 94 (5th Cir.2009) (finding no reasonable probability of a lesser sentence where the district court considered both the correct and incorrect ranges and stated that it would have imposed the same sentence in any event). The record does not establish that Mudekunye would have received an above-Guidelines sentence of 97 months if the district court had calculated the Guidelines correctly. In light of the significant disparity between Mudekunye’s sentence and the top of the correct Guidelines range and the absence of any evidence suggesting that the court would have sentenced Mudekunye to 97 months’ imprisonment irrespective of the correct Guidelines range, Mudekunye has shown a reasonable probability of a lesser sentence and therefore, demonstrated that the court’s clear error affected his substantial rights. c. Even where a defendant’s substantial rights are violated, our court retains discretion to correct the reversible plain error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett, 129 S.Ct. at 1429. The substantial disparity between the imposed sentence and the applicable Guidelines range warrants the exercise of our discretion to correct the error. See United States v. Gonzalez-Terrazas, 529 F.3d 293, 299 (5th Cir.2008) (concluding that the imposition of a sentence that was substantially greater than the Guidelines range affected the defendant’s substantial rights and the fairness of the judicial proceedings). We vacate Mudekunye’s sentence and remand for resentencing. III. For the foregoing reasons, we AFFIRM on every ground with the exception of Mudekunye’s sentence which we VACATE and REMAND for resentencing. . Because we vacate and remand for resentencing, we need not address Mudekunye's argument that his sentence was procedurally unreasonable because the sentencing court treated the Guidelines as mandatory and ignored mitigating factors. RHESA" }, { "docid": "22466072", "title": "", "text": "preserved in district court and asserts only that, nevertheless, “this error must result in a new sentencing hearing”. Re-stated, his brief simply asserts: he was sentenced under the wrong advisory Guidelines sentencing range; and, therefore, he is entitled to resentencing. Moreover, Mudekunye did not file a reply brief. Accordingly, he did not reply to the Government’s thorough briefing on why he failed to show reversible plain error and why, even if he had, we should not exercise our discretion to correct it. In short, it is the majority, not Mudekunye, who references the record evidence: “It is not apparent from the record that Mudekunye would have received an above-Guidelines sentence of 97 months if the district court had calculated the Guidelines correctly”. Id. at 290. Along this line, Justice Cardozo admonished that a judge “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness”. Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921); see also United States v. John, 597 F.3d 263, 292 (5th Cir.2010) (Smith, J., dissenting) (“Judges are not like pigs, hunting for truffles.... ” (citations and internal quotation marks omitted)). Simply put, our role is not to satisfy Mudekunye’s affected-substantial-rights prong for him. Properly placing that burden upon defendant — -as is clearly required — yields a different result. Mudekunye shows only that he was sentenced under an incorrect advisory Guidelines sentencing range; but, being sentenced outside the correct range does not, ipso facto, affect his substantial rights. Post-Booker, an advisory Guidelines sentencing-range calculation is just “one factor that a district court must consider in its [18 U.S.C.] § 3553(a) analysis.... ” Davis, 602 F.3d at 649 n. 9 (noting that, by itself, erroneous Guidelines sentencing-range selection not necessarily sufficient for error to affect substantial rights). And, as the majority admits, our precedent is unclear on whether defendant’s substantial rights are affected where the correct and.incorrect sentencing ranges overlap and defendant is sentenced outside that overlap: “Mudekunye’s case does not neatly fall into either line of [our] precedent”. Maj. Opn. at 290. A more complete (and proper)" }, { "docid": "22494653", "title": "", "text": "it. See United States v. Davila, 569 U.S. ----, ----, 133 S.Ct. 2139, 2149, 186 L.Ed.2d 139 (2013) (\"Our essential point is that particular facts and circumstances matter\"). The record in a case may show, for example, that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range. Judges may find that some cases merit a detailed explanation of the reasons the selected sentence is appropriate. And that explanation could make it clear that the judge based the sentence he or she selected on factors independent of the Guidelines. The Government remains free to \"poin[t] to parts of the record\"-including relevant statements by the judge-\"to counter any ostensible showing of prejudice the defendant may make.\" United States v. Vonn, 535 U.S. 55, 68, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Where, however, the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court's reliance on an incorrect range in most instances will suffice to show an effect on the defendant's substantial rights. Indeed, in the ordinary case a defendant will satisfy his burden to show prejudice by pointing to the application of an incorrect, higher Guidelines range and the sentence he received thereunder. Absent unusual circumstances, he will not be required to show more. The Court of Appeals' rule to the contrary fails to take account of the dynamics of federal sentencing. In a significant number of cases the sentenced defendant will lack the additional evidence the Court of Appeals' rule would require, for sentencing judges often say little about the degree to which the Guidelines influenced their determination. District courts, as a matter of course, use the Guidelines range to instruct them regarding the appropriate balance of the relevant federal sentencing factors. This Court has told judges that they need not provide extensive explanations for within-Guidelines sentences because \"[c]ircumstances may well make clear that the judge rests his decision upon the Commission's own reasoning.\" Rita, 551 U.S., at 356-357, 127 S.Ct. 2456. In these situations, reviewing courts may presume that a sentence imposed" }, { "docid": "2972364", "title": "", "text": "application of the two-level enhancement resulted in a higher Guidelines range — 78 to 97 months versus 63 to 78 months. “When a defendant is sentenced under an incorrect Guidelines range ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1345, 194 L.Ed.2d 444 (2016). Although this presumption may be rebutted by a showing that the erroneous Guidelines range did not affect the district court’s sentence, see id. at 1346, there is no indication in the record that the district court would have sentenced Jimenez-Elvirez to 97 months, the very top of the range it calculated, absent the erroneous calculation. Therefore, Jimenez-Elvirez has shown that the error affected his substantial rights. A Whether We Should Exercise Discretion to Reverse and Remand Nonetheless, this is not a case that calls for the exercise of our discretion to reverse. As an initial matter, Jimenez-Elvirez’s argument regarding the fourth prong of plain-error review is sparse and essentially indistinguishable from his prong-three argument. “Importantly, the burden is on the defendant to demonstrate that the error affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Andaverde-Tinoco, 741 F.3d 509, 528 (5th Cir. 2013). Although we decline to find that Jimenez-Elvirez forfeited this argument, he has not made a strong showing that abstaining from error correction in his case would result in “a miscarriage of justice,” Olano, 507 U.S. at 736, 113 S.Ct. 1770. “We sometimes exercise discretion to correct a plain error where the imposed sentence is ‘materially or substantially above the properly calculated range.’ ” United States v. Rosales-Mireles, 850 F.3d 246, 250 (5th Cir. 2017) (quoting United States v. John, 597 F.3d 263, 289 (5th Cir. 2010)); see also, e.g., United States v. Mudekunye, 646 F.3d 281, 290-91 (5th Cir. 2011) (concluding that substantial disparity of 19 months between imposed sentence and applicable Guidelines range warranted exercise of discretion to correct the error absent evidence suggesting that court would have imposed the same sentence irrespective" }, { "docid": "22340317", "title": "", "text": "have been 33, and his total offense level should have been 31 after his assigned two-level acceptance of responsibility reduction. However, the district court miscalculated Bennett’s total offense level as 32. This miscalculation of the offense level was plain error. A total offense level of 32 produced a Guidelines range of 210 to 262 months. Had Bennett been sentenced at the correct total offense level of 31, the Guidelines range would have been 188 to 235 months. More importantly, the district judge expressly indicated a desire to impose a sentence near the low end of the sentencing Guidelines range. Bennett’s sentence of 220 months’ imprisonment is near the low end of the Guidelines range for a total offense level of 32, but is not near the low end of the Guidelines range for a total offense level of 31. Because of the district court’s express comments, there is a reasonable probability that the district court would have sentenced Bennett differently had it used the correct total offense level of 31. The offense level miscalculation therefore affected Bennett’s substantial rights. Under these circumstances, Bennett has shown that the plain error that substantially affected his rights also seriously affected the fairness, integrity, or public reputation of the judicial proceedings in this case. See United States v. Thompson, 422 F.3d 1285, 1301-02 (11th Cir.2005); United States v. Henderson, 409 F.3d 1293, 1308 (11th Cir.2005); United States v. Dacus, 408 F.3d 686, 689 (11th Cir.2005); United States v. Martinez, 407 F.3d 1170, 1174 (11th Cir.2005); United States v. Shelton, 400 F.3d 1325, 1333-34 (11th Cir.2005). Therefore, the district court plainly erred in using a total offense level of 32 instead of a total offense level of 31. IV. CONCLUSION The district court did not err in determining that Bennett was an armed career criminal, and we affirm that determination. However, the district court did plainly err in using a total offense level of 32 to calculate the applicable Guidelines range. Therefore, we vacate and remand for the limited purpose of resentencing at the correct total offense level of 31 and the corresponding advisory Guidelines" } ]

[ { "docid": "12998724", "title": "", "text": "validity and proper scope of the sweeps in this case. However, brief mention of an issue identified during the suppression hearing is warranted. Four officers testified that it is their department's policy to conduct a sweep of a house during every home arrest as a matter of course. While we recognize the reality that these particular officers are often executing drug-related warrants, which frequently involve a threat to officer safety and thereby justify protective sweeps, Buie clearly instructs that protective sweeps must be justified on an individualized basis. Buie does not allow for a sweep in all cases. 494 U.S. at 334 n. 2, 110 S.Ct. 1093. Here, the circumstances justified the protective sweep, and future sweeps must be similarly justified in the individual cases, and may not be conducted as a matter of course. . The fact that the affiant, Agent Hodges, was not aware that the firearms were not in plain view does not change the result under Franks, nor does the fact that Agent Hodges's source of information, Agent Peterson, was also unaware of the truth. Patrolman Peters's statement cannot be insulated from a Franks challenge simply because it was relayed through two officers who were both unaware of the truth. See Franks, 438 U.S. at 163 n. 6, 98 S.Ct. 2674 (noting with approval the premise that \"police [may] not insulate one officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity”); accord United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir.1997) (collecting cases), cert. denied, 525 U.S. 863, 119 S.Ct. 151, 142 L.Ed.2d 123 (1998)." } ]

[ { "docid": "10921625", "title": "", "text": "conveying a link between D’Andrea’s home and the child abuse, the request for a Franks hearing must be denied because there has been no showing that the affiant was in any way responsible for this misrepresentation. On the factual front, the district court relied on a copy of the original DSS Intake Information Form to find that the Tipster did in fact provide D’Andrea’s address and did link the abuse to her home. The “legal” basis for the district court’s decision — that Franks does not apply to misstatements by DSS agents — is reviewed de novo. See United States v. Hicks, 575 F.3d 130, 136 (1st Cir.2009); Lewis, 40 F.3d at 1332-33. It is undisputed that a Franks hearing cannot test the truthfulness of the Tipster (or of any other private informant, for that matter). See Franks, 438 U.S. at 171, 98 S.Ct. 2674 (“The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.”) (emphasis added). But it does not necessarily follow that a Franks hearing cannot test the truthfulness of the DSS agent. The DSS agent was, after all, a government actor (a conclusion the government does not dispute), so he cannot be conveniently lumped together with the private Tipster. Nor should Franks be read to apply only to misrepresentations made by the affiant himself, because such a reading would allow the police to slip lies into affidavits with impunity by simply passing them through an officer ignorant of their falsehood. Franks, 438 U.S. at 164 n. 6, 98 S.Ct. 2674 (“[PJolice could not insulate one officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.”). This does not mean that Franks necessarily applies to DSS agents or other similarly situated governmental actors; rather, it means that such a determination requires an examination and weighing of the policies served and disserved by applying Franks, the kind of inquiry the Supreme Court has grappled with when deciding whether to apply other Fourth Amendment doctrines to non-police governmental actors in other contexts. See," }, { "docid": "5009086", "title": "", "text": "long as the affiant states some reason for his conclusion that the informant is reliable. . Prior to Franks, the law in this circuit permitted challenges to any intentional misrepresentation, irrespective of its materiality. See United States v. Carmichael, 489 F.2d 983, 988 (7th Cir. 1973) (en banc). . The government concedes that Franks is applicable to warrants obtained under Title III. . There is one exception to this principle: where hearsay is provided to one government agent who knows the informant is lying, recklessly believes the informant, or deliberately or recklessly misreports the information to a., second government agent, who then innocently includes the misrepresentations in an affidavit. In such a case, the government can “not insulate one officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.” United States v. DePalma, 461 F.Supp. 800, 815 n. 13 (S.D.N. Y.1978). See 438 U.S. at 163 n. 6, 98 S.Ct. at 2680 n. 6. . Franks reserved the question whether special circumstances might exist which would necessitate the disclosure of the identity of a confidential informant. See 438 U.S. at 170, 98 S.Ct. at 2684. Since defendants do not seek disclosure here, we need not reach this question. However, defendants have requested that the court conduct an in camera, ex parte review of the government’s contact reports summarizing the information received from its informants, so that the court can review defendants’ claims that the informants either do not exist, or did not provide the information attributed to them. The government concedes the court has the authority to do this, but suggests defendants have made no showing justifying the exercise of our discretion. We have declined to order the government to produce the reports for the court, for a number of reasons. First, we doubt the value of an ex parte in camera review, since the government’s presentation could not be tested by cross-examina-, tion. See United States v. Moore, 522 F.2d 1068, 1073 (9th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976); United States v. Marihart, 492 F.2d 897," }, { "docid": "1702328", "title": "", "text": "the affiant can be the basis for a Franks suppression. The Fourth Amendment places restrictions and qualifications on the actions of the government generally, not merely on affiants. While we do not suggest that this is the case here, a different rule would permit government officials deliberately to keep from affiants or the court information material to the determination of probable cause and by such conduct avoid the necessity of a Franks hearing. The Supreme Court heeded this point in Franks, 438 U.S. at 163-64 n. 6, 98 S.Ct. at 2680 n. 6, and at least two circuits have explicitly stated this tacit but obvious premise. See United States v. Calisto, 838 F.2d 711, 714 (3d Cir.1988); United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir.1984). We agree with the Calisto court that, “[i]f we held that the conduct of ... the affiant[ ] was the only relevant conduct for the purpose of applying the teachings of Franks, we would place the privacy rights protected by that case in serious jeopardy. As the Supreme Court noted in Franks, ‘police [canjnot insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.’ 438 U.S. at 164 n. 6, 98 S.Ct. at 2680.” Calisto, 838 F.2d at 714 (footnote omitted). Therefore, we join the Third and Seventh Circuits in holding that misstatements or omissions of government officials which are incorporated in an affidavit for a search warrant are grounds for a Franks hearing, even if the official at fault is not the affiant. The facts of this case demonstrate the soundness of this rule. Agent Jurovich knew that Charles Linedecker denied seeing or smelling marijuana on DeLeon’s property, but was able to “hide” that knowledge and attempt to circumvent the Franks rule by simply not telling Sergeant Shay, the affiant. The result was that a warrant based on a variety of anonymous and hearsay statements could be obtained for a particularly non-exigent suspected crime, involving neither violence nor mobile contraband. III. In determining whether probable cause to search exists, a court must view the “totality" }, { "docid": "16139266", "title": "", "text": "at 449. While Hart involved a government official who actually participated in drafting the affidavit, see 127 F.3d at 432,- its holding was not so confined. Rather than say that an officer violates the Fourth Amendment when he recklessly drafts or signs an affidavit that includes false information, we held that a “governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in [the] affidavit.” Hart, 127 F.3d at 448; accord United States v. Brown, 298 F.3d 392, 408 & n.9 (5th Cir. 2002) (Dennis, J., concurring) (“[A] defendant is entitled to a Franks hearing upon making a ... showing that á governmental official deliberately or recklessly caused facts that preclude a finding of probable cause to be omitted from a warrant affidavit.”). Indeed, we expressly relied upon the Supreme Court’s statement in Franks that police cannot “ ‘insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.’ ” Hart, 127 F.3d at 448 (quoting Franks, 438 U.S. at 164 n.6, 98 S.Ct. 2674). It would therefore have made very little sense for us to sanction the insulation of officer misstatements merely by having another officer draft an affidavit that includes those misstatements. Moreover, our holding in Hart relied on several cases in which our sister circuits applied Franks to government officials who neither signed nor drafted thé affidavits. See Hart, 127 F.3d at 448 (citing United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (Franks applies to actions of investigator who neither signed nor drafted the affidavit); United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995) (deliberate or reckless omission by informant-government agent can serve as grounds for Franks suppression); United States v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (same); United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir. 1984) (.Franks applies to “government agent [who] deliberately or recklessly misrepresents information to a second agent, who then innocently includes the misrepresentations in an affidavit”)). Notably, we also cited Hale v. Fish, in which this court applied the Franks" }, { "docid": "3098422", "title": "", "text": "on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent. (footnotes omitted). e) The Good Faith Exception The Government initially took the position in opposing Perez’s motion that even if the search warrant was not supported by probable cause, the motion to suppress had to be denied because the officers who executed the search acted in good faith reliance on the warrant. (Gov’t’s Mem. in Opp. to Def.’s Mot. to Suppress at 29-31). The Government now retreats from that position (2/19/03 Tr. at 21), as it must. In the event of a successful challenge under Franks, the good faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply. This much the Court in Leon made clear: “Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923, 104 S.Ct. 3405 (citing Franks ). Likewise, although the Government also argued initially that the motion to suppress had to be denied because the affiant, Berglas, was acting in good faith and “simply relay[ing]” the inaccurate information provided by Binney (Gov’t’s Mem. in Opp. to Def.’s Mot. to Suppress at 19), it has retreated from that position as well. (2/19/03 Tr. at 21). There simply is no support for the Government’s initial position, where the source of the information is another government agent. The Government cannot insulate one agent’s deliberate or reckless misstatement in an affidavit merely by relaying it through another agent personally ignorant of its falsity. See Franks, 438 U.S. at 164 n." }, { "docid": "1702329", "title": "", "text": "Court noted in Franks, ‘police [canjnot insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.’ 438 U.S. at 164 n. 6, 98 S.Ct. at 2680.” Calisto, 838 F.2d at 714 (footnote omitted). Therefore, we join the Third and Seventh Circuits in holding that misstatements or omissions of government officials which are incorporated in an affidavit for a search warrant are grounds for a Franks hearing, even if the official at fault is not the affiant. The facts of this case demonstrate the soundness of this rule. Agent Jurovich knew that Charles Linedecker denied seeing or smelling marijuana on DeLeon’s property, but was able to “hide” that knowledge and attempt to circumvent the Franks rule by simply not telling Sergeant Shay, the affiant. The result was that a warrant based on a variety of anonymous and hearsay statements could be obtained for a particularly non-exigent suspected crime, involving neither violence nor mobile contraband. III. In determining whether probable cause to search exists, a court must view the “totality of circumstances” set forth in the affidavit. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), reh’g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). The relevant inquiry under Gates is whether in light of all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 238, 103 S.Ct. at 2332. In general, a court reviewing the validity of a search warrant is limited to the information contained on the face of the underlying affidavit. United States v. Taylor, 716 F.2d 701, 705 (9th Cir.1983). Where, as here, a warrant’s validity is challenged for deliberate of reckless omissions of facts that tend to mislead, the affidavit must be considered with the omitted information included. United States v. Condo, 782 F.2d 1502, 1506 (9th Cir.1986). We find that if the omitted information had been included in the application for the search warrant, no reasonable person could have found probable cause to" }, { "docid": "16139265", "title": "", "text": "Id. at 432. Hart alleged that Starnes' inserted false statements into the affidavit, either intentionally or with reckless disregard for the truth. Id. Rejecting any contention that Starnes could not be liable for Fourth Amendment violations because he did not sign the affidavit, we explained that Franks “left open the possibility that a search or arrest violates the Fourth Amendment where' the affiant relies in good faith on deliberate or reckless misstatements by another government official.” Id. at 448 (citing Franks, 438 U.S. at 164 n.6, 98 S.Ct. 2674). After considering several sister circuits’ holdings that deliberate or reckless misrepresentations by non-affiant government officials may form the basis for Franks claims, we concluded: We agree with the reasoning of these circuit courts.... The Fourth Amendment places restrictions and qualifications on the actions of the government generally, not merely on affiants. A governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit. Id. at 449. While Hart involved a government official who actually participated in drafting the affidavit, see 127 F.3d at 432,- its holding was not so confined. Rather than say that an officer violates the Fourth Amendment when he recklessly drafts or signs an affidavit that includes false information, we held that a “governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in [the] affidavit.” Hart, 127 F.3d at 448; accord United States v. Brown, 298 F.3d 392, 408 & n.9 (5th Cir. 2002) (Dennis, J., concurring) (“[A] defendant is entitled to a Franks hearing upon making a ... showing that á governmental official deliberately or recklessly caused facts that preclude a finding of probable cause to be omitted from a warrant affidavit.”). Indeed, we expressly relied upon the Supreme Court’s statement in Franks that police cannot “ ‘insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.’ ” Hart, 127 F.3d at 448 (quoting Franks, 438 U.S. at 164 n.6," }, { "docid": "21809650", "title": "", "text": "misrepresenting officer’s] statement cannot be insulated from a Franks challenge simply because it was relayed through two officers who were both unaware of the truth.” Id. at 947 n.6. In United States v. Lakoskey, 462 F.3d 965 (8th Cir. 2006), the court considered alleged misrepresentations by an Arizona-based postal inspector, Hirose, in an email to a Minnesota-based inspector, Nichols. The email informed Nichols that a Minnesota resident was apparently involved in a drug trafficking operation using the mails. Id. at 970. Only after this email was received, Nichols launched an investigation, which included multiple dog sniffs, and, over two weeks later, applied for and obtained a search warrant based in part on the information relayed in the email. Id. at 970-71. Nothing in the facts or in the court’s discussion suggests that Hirose was “involved in the preparation” of the warrant affidavit or intended for the information to be used in an affidavit. Nonetheless, the court recognized that misrepresentations by Hirose could give rise to a Franks claim, see id. at 978, though it ultimately concluded that the misrepresentations were not material, id. Our sister circuits’ caselaw reflects a common-sense understanding: when an officer, acting with reckless disregard for the truth, includes false, material information in an official report for further official use, leading to an unlawful search or arrest of an innocent person, there is no justification to insulate him from liability. A reasonable officer can certainly foresee that such actions could lead to an unlawful search or arrest, as information relayed in law enforcement agents’ reports routinely end up as support for warrant applications even if the reports are not expressly designed exclusively for that use. See, e.g., Calisto, 838 F.2d at 712; Davis, 471 F.3d at 942; Lakoskey, 462 F.3d at 970-71. Nor does the passage of time between the false report and the warrant application justify ignoring that officer’s conduct. Whether the false information is used within a week or a year is not within the misrepresenting officer’s control—the majority opinion offers no basis for the proposition that the existence of a constitutional violation depends on" }, { "docid": "21809647", "title": "", "text": "Hart. There is no way to explain how the language of these two cases and their reliance on Michalik could be consistent with Hart, So the majority opinion does not quote or otherwise discuss their language and does not even mention their reliance on Michalik. The majority opinion’s attempt to argue that Hampton and Jennings can be harmonized with Hart amounts to an endeavor to square the circle. C The majority opinion’s holding that an officer who makes a deliberate or reckless misrepresentation can only be held liable if he “assisted in the preparation of, or otherwise presented or signed a warrant application” is unsound and, unsurprisingly, is not the law in any other circuit. See, e.g., United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997) (Fourth Amendment violated by false statements “made not only by the affiant but also [by] statements made by other government employees ... insofar as such statements were relied upon by the affiant in making the affidavit”); United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (“[W]e join the Third and Seventh Circuits in holding that misstatements or omissions of government officials which are incorporated in an affidavit for a search warrant are grounds for a Franks hearing.”). Cf. United States v. Leon, 468 U.S. 897, 923 n.24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (admonishing that in applying the good-faith exception “[i]t is necessary to consider the objective reasonableness ... of the officers who originally obtained [the warrant] or who provided information material to the probable-cause determination”). The following cases further illustrate the majority opinion’s departure from the holdings of our sister circuits. In United States v. Calisto, 838 F.2d 711, 712 (3d Cir. 1988), an officer relayed information to a second officer at a second agency. The first officer’s “reason for relaying the information to [the second officer] ... was his belief that it would aid [that officer] in his investigation.” Id. (emphasis added). The first officer requested not to be revealed as the source of the information. Id. The second officer then relayed the information to a third" }, { "docid": "21809613", "title": "", "text": "The district court refused to hear testimony on this point and denied the defendant’s motion to suppress. Id. at 160, 98 S.Ct. 2674. The Supreme Court of Delaware affirmed, holding that a defendant may never challenge the veracity of a warrant affidavit. Id. The Supreme Court of the United States reversed, determining that the Fourth Amendment entitles a defendant to a hearing on the veracity of a warrant affidavit if he can make a sufficient preliminary showing that the affiant officer obtained the warrant by recklessly including material falsehoods in a warrant application; Id. at 171-72, 98 S.Ct. 2674. Particularly relevant to our analysis here, the Supreme Court also observed in a footnote that an officer should not be permitted to “insulate” a deliberate misstatement “merely by relaying it through an officer-affiant personally ignorant of its falsity.” Id. at 168 n.6, 98 S.Ct. 2674, Our decision in Hart applied this principle to allow Section 1983 claims against an officer who “deliberately or recklessly provides false, material information for use in an affidavit in support of [a warrant].” Hart, 127 F.3d at 448-49 (citing Franks, 438 U.S. at 163 n.6, 98 S.Ct. 2674) (holding that assistant county attorney was entitled to qualified immunity because he did not act recklessly when he erroneously told an officer who was filling out a warrant application that the person to be arrested for suspected drug offenses was the wife of a known marijuana cultivator). In Hampton, we clarified that the holding in Hart does not extend to -officers who neither prepared nor presented the warrant affidavit. Hampton, 480 F.3d at 365 (holding that two officers who did not prepare, present, or sign a warrant affidavit were entitled to qualified immunity whereas a third officer who prepared the warrant affidavit could be liable for falsely accusing the plaintiff of resisting another individual’s arrest). We reaffirmed this principle in Jennings, holding again that an officer enjoys qualified immunity if he does not prepare, present, or sign a warrant application. Jennings, 644 F.3d at 300-01 (holding that judge who allegedly, fabricated corruption charges was entitled to qualified immunity" }, { "docid": "5009085", "title": "", "text": "v. State, 19 Md.App. 507, 313 A.2d 847 (1974); 1 W. La-Fave, supra p. 13 § 3.3(c). . Telephone toll records are another example of how information innocent in itself can provide corroboration under the second Aguilar/Spinelli prong. See also note 12 supra. . Defendants interpret the second prong to prohibit mere conclusory statements of reliability. However, labeling a statement as “conclusory” is of little analytical aid. Affidavits containing conclusory allegations of reliability have been upheld so long as the affidavit contains allegations that, if true (and the truth of the allegations is assumed for purposes of the Aguilar/Spinelli inquiry), provide a basis for concluding that the informant is reliable. See Jones v. United States, 362 U.S. 257, 267 n.2, 80 S.Ct. 725, 734, n.2, 4 L.Ed.2d 697 (1960); United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973) (en banc); United States v. Hood, 422 F.2d 737, 739 (7th Cir. 1970). See also Harris, 403 U.S. at 580-81, 91 S.Ct. at 2080-81. The teaching of these cases is that “conclusory” statements are permissible as long as the affiant states some reason for his conclusion that the informant is reliable. . Prior to Franks, the law in this circuit permitted challenges to any intentional misrepresentation, irrespective of its materiality. See United States v. Carmichael, 489 F.2d 983, 988 (7th Cir. 1973) (en banc). . The government concedes that Franks is applicable to warrants obtained under Title III. . There is one exception to this principle: where hearsay is provided to one government agent who knows the informant is lying, recklessly believes the informant, or deliberately or recklessly misreports the information to a., second government agent, who then innocently includes the misrepresentations in an affidavit. In such a case, the government can “not insulate one officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.” United States v. DePalma, 461 F.Supp. 800, 815 n. 13 (S.D.N. Y.1978). See 438 U.S. at 163 n. 6, 98 S.Ct. at 2680 n. 6. . Franks reserved the question whether special circumstances might exist which would necessitate the disclosure of" }, { "docid": "21809649", "title": "", "text": "officer at a third agency, who then relayed information to a fourth officer at a fourth agency, who then drafted and signed a warrant application based on the information. In applying Franks, the Third Circuit considered the information provided, and omitted, by all four agents, ultimately concluding that any misrepresentation was not material. See 838 F.2d at 714-15 & n.2. In United States v. Davis, 471 F.3d 938, 942 (8th Cir. 2006), an officer who conducted a protective sweep relayed false information to another officer who participated ‘in the sweep, and the latter officer relayed that information to the affiant. Nothing in the facts or the court’s discussion suggests that the misrepresenting officer was “involved in the preparation” of the warrant affidavit, and the court concluded that his misrepresentation was reckless. Id. at 946. The court stated, “The fact that the affiant ... was not aware [of the falsity] does not change the result under Franks, nor does the fact that [the affiant’s] source of information ... was also unaware of the truth. [The recklessly misrepresenting officer’s] statement cannot be insulated from a Franks challenge simply because it was relayed through two officers who were both unaware of the truth.” Id. at 947 n.6. In United States v. Lakoskey, 462 F.3d 965 (8th Cir. 2006), the court considered alleged misrepresentations by an Arizona-based postal inspector, Hirose, in an email to a Minnesota-based inspector, Nichols. The email informed Nichols that a Minnesota resident was apparently involved in a drug trafficking operation using the mails. Id. at 970. Only after this email was received, Nichols launched an investigation, which included multiple dog sniffs, and, over two weeks later, applied for and obtained a search warrant based in part on the information relayed in the email. Id. at 970-71. Nothing in the facts or in the court’s discussion suggests that Hirose was “involved in the preparation” of the warrant affidavit or intended for the information to be used in an affidavit. Nonetheless, the court recognized that misrepresentations by Hirose could give rise to a Franks claim, see id. at 978, though it ultimately" }, { "docid": "21809648", "title": "", "text": "(“[W]e join the Third and Seventh Circuits in holding that misstatements or omissions of government officials which are incorporated in an affidavit for a search warrant are grounds for a Franks hearing.”). Cf. United States v. Leon, 468 U.S. 897, 923 n.24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (admonishing that in applying the good-faith exception “[i]t is necessary to consider the objective reasonableness ... of the officers who originally obtained [the warrant] or who provided information material to the probable-cause determination”). The following cases further illustrate the majority opinion’s departure from the holdings of our sister circuits. In United States v. Calisto, 838 F.2d 711, 712 (3d Cir. 1988), an officer relayed information to a second officer at a second agency. The first officer’s “reason for relaying the information to [the second officer] ... was his belief that it would aid [that officer] in his investigation.” Id. (emphasis added). The first officer requested not to be revealed as the source of the information. Id. The second officer then relayed the information to a third officer at a third agency, who then relayed information to a fourth officer at a fourth agency, who then drafted and signed a warrant application based on the information. In applying Franks, the Third Circuit considered the information provided, and omitted, by all four agents, ultimately concluding that any misrepresentation was not material. See 838 F.2d at 714-15 & n.2. In United States v. Davis, 471 F.3d 938, 942 (8th Cir. 2006), an officer who conducted a protective sweep relayed false information to another officer who participated ‘in the sweep, and the latter officer relayed that information to the affiant. Nothing in the facts or the court’s discussion suggests that the misrepresenting officer was “involved in the preparation” of the warrant affidavit, and the court concluded that his misrepresentation was reckless. Id. at 946. The court stated, “The fact that the affiant ... was not aware [of the falsity] does not change the result under Franks, nor does the fact that [the affiant’s] source of information ... was also unaware of the truth. [The recklessly" }, { "docid": "7129378", "title": "", "text": "argues that the Weniger affidavit was knowingly and intentionally false or made with reckless disregard for the truth and that, accordingly, there must be a Franks-type excision of paragraphs 2, 3 aná 6 of Weniger’s affidavit. When those paragraphs have been excluded, Calisto contends, the affidavit provides no probable cause for the issuance of a search warrant. We start with the fact that from Weni-ger’s perspective, the affidavit was filed in good faith and accurately reflected the facts as he understood them. We agree with Calisto, however, that this cannot end the matter. If we held that the conduct of Weniger, as the affiant, was the only relevant conduct for the purpose of applying the teachings of Franks, we would place the privacy rights protected by that case in serious jeopardy. As the Supreme Court noted in Franks, “police [canjnot insulate one officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.” 438 U.S. at 164 n. 6, 98 S.Ct. at 2680. We also agree with Calisto that his argument is not answered by the fact that the Weniger affidavit is literally true because Gilbride’s immediate source was reliable and was believed by Gilbride to be reliable based on several past experiences. If Cal-isto is correct in his contention that the affidavit is materially misleading, it would make no difference that it could be read literally to correspond with reality. We conclude, however, that Franks does not require a reversal of Calisto’s conviction. The record reflects that the portion of Weniger’s affidavit which refers to Gil-bride’s source accurately describes the original source of the hearsay information concerning Calisto, namely Vivino’s confidential informant. The original source of the information was correctly represented to be a confidential source who was reliable and who was believed by his law enforcement contact to be reliable based on several experiences in the past when the information provided had been subsequently confirmed. Accordingly, assuming, as Cal-isto argues, that the Weniger affidavit suggests to the magistrate that Gilbride described to Weniger the original source of the hearsay information, the magistrate could not" }, { "docid": "3098423", "title": "", "text": "677 (1984), does not apply. This much the Court in Leon made clear: “Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923, 104 S.Ct. 3405 (citing Franks ). Likewise, although the Government also argued initially that the motion to suppress had to be denied because the affiant, Berglas, was acting in good faith and “simply relay[ing]” the inaccurate information provided by Binney (Gov’t’s Mem. in Opp. to Def.’s Mot. to Suppress at 19), it has retreated from that position as well. (2/19/03 Tr. at 21). There simply is no support for the Government’s initial position, where the source of the information is another government agent. The Government cannot insulate one agent’s deliberate or reckless misstatement in an affidavit merely by relaying it through another agent personally ignorant of its falsity. See Franks, 438 U.S. at 164 n. 6, 98 S.Ct. 2674; United States v. Wapnick, 60 F.3d 948, 956 (2d Cir.1995) (noting that “when the informant is himself a government official-, a deliberate or reckless omission by the informant can still serve as grounds for a Franks suppression” because “[otherwise, the government would be able to shield itself from Franks suppression hearings by deliberately insulating affiants from information material to the determination of probable cause”); see also United States v. Whitley, 249 F.3d at 621 (“Subsequent de-eisions have slightly expanded the Franks principle to include the state of mind not only of the affiant, but also of those governmental agents from whom the affiant received false information incorporated into the affidavit. In other words, the validity of the search is not saved if the governmental officer swearing to the affidavit has incorporated an intentional or reckless falsehood told to him by another governmental agent.”); United States v. Brown, 298 F.3d 392, 408 (5th Cir.2002) (same). B. Application In applying the law to the facts, first, I address whether the agents knowingly or" }, { "docid": "2765351", "title": "", "text": "Motley are entitled to qualified immunity on all of Hart’s allegations against them. C Starnes’s claim to qualified immunity is on slightly different footing because he is not a police officer. In section V, we held that Starnes was absolutely immune from Hart’s claims that he participated in the decision to place her on “federal hold” and that he tried to persuade her to provide information about Conine. We now consider whether Starnes is qualifiedly immune from Hart’s claims stemming from the fact that he provided inaccurate information for the warrant affidavit (i.e., the statement about Hart being married to Stanley Hart, a known marijuana cultivator) and from the fact that, even after realizing that this information was incorrect, he refused to stop Hart’s arrest. 1 Under Siegert, we must consider at the threshold whether Hart even alleges a Fourth Amendment violation with regard to the false information claim. 500 U.S. at 232, 111 S.Ct. at 1793. The Supreme Court in Franks v. Delaware established that a search violates the Fourth Amendment if it was conducted pursuant to a warrant issued by a magistrate who was misled by information in an affidavit, provided that the affiant knew the information was false or would have known it was false except for his reckless disregard for the truth. 438 U.S. at 171, 98 S.Ct. at 2684. However, Starnes is not the affiant in this case, and, taken at face value, Franks applies only to officers who sign a warrant affidavit or otherwise request a warrant under oath: “[t]he deliberate falsity or reckless disregard whose impeachment is permitted is only that of the affiant, not of any nongovernmental'informant.” Id. However, we need not take Franks only at face value. The Court left open the possibility that a search or arrest violates the Fourth Amendment where the affiant relies in good faith on deliberate or reckless misstatements by another governmental official in establishing probable cause. See id. at 164 n. 6, 98 S.Ct. at 2680 (“[Pjolice [can] not insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its" }, { "docid": "21809627", "title": "", "text": "prepare the warrant affidavit); Burke v. Town of Walpole, 405 F.3d 66, 86 (1st Cir. 2005) (applying Franks where officer Who \"was centrally involved in the collection of evidence to be used to secure an arrest warrant’’ withheld evidence from the affiant); United States v. Wapnick, 60 F.3d 948, 950, 955-56 (2d Cir. 1995) (applying Franks where non-affiant \"knowingly or recklessly made false statements to [the affiant] in connection with [the affiant’s] preparation of the affidavit”); United States v.. DeLeon, 979 F.2d 761, 762-63 (9th Cir. 1992) (applying Franlcs where the affiant was present during the non-affiant investigator’s telephone interviews.and based same-day affidavit on those interviews); United States v. Calisto, 838 F.2d 711, 712-13 (3d Cir. 1988) (applying Franks where non-affiant informants provided information regarding a drug investigation to a police officer who then obtained a warrant); United States v. Pritchard, 745 F.2d. 1112, 1118-19 (7th Cir. 1984) (applying Franks where non-affiant provided information to af- • fiant and noting that Franlcs applies \"when one government agent deliberately or recklessly misrepresents information to a second agent, who then innocently includes the misrepresentations in an affidavit”). Moreover, Hart fully addresses the panel's concern that an officer might seek to insulate a misstatement \"merely by relaying it through an officer-affiant personally ignorant of its falsity” because it applies Franlcs to officers who provide information for use in a warrant application. See Hart, 127 F.3d at 448 (citing Franks, 438 U.S. at 163 n.6, 98 S.Ct 2674). : As noted above, Melton has not requested a broad new rule but 'only asSerts that Deputy Phillips is liable under our circuit's existing case law. . In the alternative, the fact issues identified by the district court are not material to recklessness as defined in Hart. For purposes of liability under Franks, Hart defined recklessness to require that an officer \"in fact entertained serious doubts as to the truth” of the information included in the warrant application. Hart, 127 F.3d at 449. Even assuming arguendo that Alford correctly surmised that Deputy Phillips used the P.I.D. system without having the victim verify any identifying information other" }, { "docid": "21809612", "title": "", "text": "Deputy Phillips violated his Fourth Amendment rights is based on the Supreme Court’s decision in Franks and our subsequent application of Franks in Hart. The defendant in Franks was convicted of sexual assault and sentenced to life imprisonment after the district court denied his motion to suppress evidence that had been seized pursuant to a search warrant. Franks, 438 U.S. at 160, 98 S.Ct. 2674. The warrant affidavit in that case stated that the affiant had personally spoken with two individuals who worked at the defendant’s place of employment, who had both told him that the defendant often' wore clothing that matched the description offered by the victim. Id. at 157, 98 S.Ct. 2674. At the suppression hearing, the defendant requested the right to call these individuals to testify that they had never spoken personally with the affiant and that if they had spoken to another police officer, any information they would have provided about the defendant would have been “somewhat different” from what was recited in the affidavit. Id. at 158, 98 S.Ct. 2674. The district court refused to hear testimony on this point and denied the defendant’s motion to suppress. Id. at 160, 98 S.Ct. 2674. The Supreme Court of Delaware affirmed, holding that a defendant may never challenge the veracity of a warrant affidavit. Id. The Supreme Court of the United States reversed, determining that the Fourth Amendment entitles a defendant to a hearing on the veracity of a warrant affidavit if he can make a sufficient preliminary showing that the affiant officer obtained the warrant by recklessly including material falsehoods in a warrant application; Id. at 171-72, 98 S.Ct. 2674. Particularly relevant to our analysis here, the Supreme Court also observed in a footnote that an officer should not be permitted to “insulate” a deliberate misstatement “merely by relaying it through an officer-affiant personally ignorant of its falsity.” Id. at 168 n.6, 98 S.Ct. 2674, Our decision in Hart applied this principle to allow Section 1983 claims against an officer who “deliberately or recklessly provides false, material information for use in an affidavit in support of" }, { "docid": "2765352", "title": "", "text": "conducted pursuant to a warrant issued by a magistrate who was misled by information in an affidavit, provided that the affiant knew the information was false or would have known it was false except for his reckless disregard for the truth. 438 U.S. at 171, 98 S.Ct. at 2684. However, Starnes is not the affiant in this case, and, taken at face value, Franks applies only to officers who sign a warrant affidavit or otherwise request a warrant under oath: “[t]he deliberate falsity or reckless disregard whose impeachment is permitted is only that of the affiant, not of any nongovernmental'informant.” Id. However, we need not take Franks only at face value. The Court left open the possibility that a search or arrest violates the Fourth Amendment where the affiant relies in good faith on deliberate or reckless misstatements by another governmental official in establishing probable cause. See id. at 164 n. 6, 98 S.Ct. at 2680 (“[Pjolice [can] not insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.”). Several circuits have held that a deliberate or reckless misstatement or omission by a governmental official who is not the affiant may nevertheless form the basis of a Franks claim. United States v. Wapnick, 60 F.3d 948, 956 (2d Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1672, 134 L.Edüd 776 (1996); United States v. DeLeon, 979 F.2d 761, 764 (9th Cir.1992); United States v. Calisto, 838 F.2d 711, 714 (3d Cir.1988); United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir.1984); cf. Hale v. Fish, 899 F.2d 390, 401 (5th Cir.1990) (applying Franks test to officer who did not sign or draft affidavit but whose presence at time of warrant tended to influence judge issuing warrant). We agree with the reasoning of these circuit courts that a deliberate or reckless misstatement may form the basis for a Franks claim against a government official who is not the affiant. “The Fourth Amendment places restrictions and qualifications on the actions of the government generally, not merely on affiants.” DeLeon, 979 F.2d at 764. A governmental" }, { "docid": "21809628", "title": "", "text": "agent, who then innocently includes the misrepresentations in an affidavit”). Moreover, Hart fully addresses the panel's concern that an officer might seek to insulate a misstatement \"merely by relaying it through an officer-affiant personally ignorant of its falsity” because it applies Franlcs to officers who provide information for use in a warrant application. See Hart, 127 F.3d at 448 (citing Franks, 438 U.S. at 163 n.6, 98 S.Ct 2674). : As noted above, Melton has not requested a broad new rule but 'only asSerts that Deputy Phillips is liable under our circuit's existing case law. . In the alternative, the fact issues identified by the district court are not material to recklessness as defined in Hart. For purposes of liability under Franks, Hart defined recklessness to require that an officer \"in fact entertained serious doubts as to the truth” of the information included in the warrant application. Hart, 127 F.3d at 449. Even assuming arguendo that Alford correctly surmised that Deputy Phillips used the P.I.D. system without having the victim verify any identifying information other than first and last names and that a reasonable officer would not have relied on information so obtained, this would not satisfy the requirement that Deputy Phillips entertained serious doubts as to the truth of the information in the report. Melton has not pointed to any evidence on this requirement. . \"This circuit follows the rule that alternative holdings are binding precedent and not obiter dictum.” United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011). . Although neither Melton nor Deputy Phillips has briefed this prong of the qualified immunity analysis, Deputy Phillips's good-faith assertion of qualified immunity has placed the burden on Melton to demonstrate that neither prong of the defense applies. King, 821 F.3d at 653. Moreover, both parties have briefed their understanding of the law that existed at the time Deputy Phillips prepared the incident report, and reaching prong two of qualified immunity does not result in unfair prejudice. It is important to consider the defense at the earliest possible stage of litigation because qualified immunity is an immunity" } ]

[ { "docid": "20397858", "title": "", "text": "Court described “the practical difficulties and potential unfairness of a factual approach.” Id. Among other things, the Court pointed out that “[i]n all cases where the Government alleges that the defendant’s actual conduct would fit the generic definition of burglary, the trial court would have to determine what that conduct was.” Id. In addition, the Court noted that a factual approach would create special problems in the context of guilty pleas: [I]n cases where the defendant pleaded guilty, there often is no record of the underlying facts. Even if the Government were able to prove those facts, if a guilty plea to a lesser, nonburglary offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary. Id. at 601-02,110 S.Ct. 2143. Finally, the Taylor Court recognized a subset of cases where the categorical approach might permit courts to engage in some factual inquiry: This categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement. Id. at 602, 110 S.Ct. 2143. This exception has come to be known as the “modified categorical approach.” The modified categorical approach grew out of a recognition that the categorical approach presented a problem in cases where the statute of prior conviction covers multiple subjects. Since state and federal criminal statutes are written in various styles, and are not always limited to single subjects, the categorical approach, strictly applied, would often make it impossible to apply the enhancement even when it is apparent that it should be applicable. In" } ]

[ { "docid": "19628451", "title": "", "text": "looked solely to the elements of [burglary] as defined by [state] law.\" 550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In Sykes v. United States : \"[W]e consider [only] the elements of the offense [,] without inquiring into the specific conduct of this particular offender.\" 564 U.S. 1, 7, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (quoting James, 550 U.S., at 202, 127 S.Ct. 1586 ; emphasis in original). And most recently (and tersely) in Descamps : \"The key [under ACCA] is elements, not facts.\" 570 U.S., at ----, 133 S.Ct., at 2283. Our decisions have given three basic reasons for adhering to an elements-only inquiry. First, ACCA's text favors that approach. By enhancing the sentence of a defendant who has three \"previous convictions\" for generic burglary, § 924(e)(1) -rather than one who has thrice committed that crime-Congress indicated that the sentencer should ask only about whether \"the defendant had been convicted of crimes falling within certain categories,\" and not about what the defendant had actually done. Taylor, 495 U.S., at 600, 110 S.Ct. 2143. Congress well knows how to instruct sentencing judges to look into the facts of prior crimes: In other statutes, using different language, it has done just that. See United States v. Hayes, 555 U.S. 415, 421, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (concluding that the phrase \"an offense ... committed\" charged sentencers with considering non-elemental facts); Nijhawan v. Holder, 557 U.S. 29, 36, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (construing an immigration statute to \"call[ ] for a 'circumstance-specific,' not a 'categorical' interpretation\"). But Congress chose another course in ACCA, focusing on only \"the elements of the statute of conviction.\" Taylor, 495 U.S., at 601, 110 S.Ct. 2143. Second, a construction of ACCA allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns. This Court has held that only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d" }, { "docid": "9301390", "title": "", "text": "is there any other particularly confusing factor distinguishing § 924(c)(3)(B) from other laws that require juries to consider real-world conduct. Beyond these practical distinctions, the difference between evaluating a prior conviction and evaluating an alleged predicate crime charged contemporaneously in the same indictment is important with regard to the Sixth Amendment right-to-trial concerns that motivated the categorical approach. In Dimaya, a plurality suggested that taking a case-specific approach to § 16(b) would \"merely ping-pong us from one constitutional issue to another,\" because the categorical approach was imposed in part to \"avoid[ ] the Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries.\" Dimaya, 138 S.Ct. at 1217 (quoting Descamps, 570 U.S. at 267, 133 S.Ct. 2276 ); see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that \"any fact that increases the penalty for a crime beyond the ... statutory maximum must be submitted to a jury\"). Here, because the residual clause at § 924(c)(3)(B) requires a consideration of a contemporaneous predicate offense rather than a past conviction, the finding of fact would be made by a jury (or stipulated in a plea agreement), thus raising no Sixth Amendment problem. See Ovalles, No. 17-10172, 905 F.3d at 1249-50, 2018 WL 4830079, at *15 (noting no Sixth Amendment issues when taking a conduct-specific approach to § 924(c) ). A defendant like Douglas has the chance to contest the relevant facts either at trial or in plea negotiations. If for whatever reason a defendant cannot or will not accept the prosecution's version of the facts, either in whole in or part, he or she maintains the constitutional right to contest these facts at trial in front of a jury. By considering a contemporaneous offense, then, a \"defendant suffers no prejudice because the court is not finding any new facts which are not of record in the case before it.\" Robinson, 844 F.3d at 143. Here, the district court had the relevant facts concerning all charges against Douglas, and Douglas had the right to contest them" }, { "docid": "9018308", "title": "", "text": "circumstances underlying long-since-passed convictions-potentially turning sentencing proceedings into de facto mini-trials. See 495 U.S. at 601-02, 110 S.Ct. 2143. That \"look-back\" concern (our term, not the Supreme Court's) has continued to animate the Court's application of a categorical approach in the ACCA and § 16 contexts. As the plurality summarized in Dimaya : \"This Court has often described the daunting difficulties of accurately 'reconstruct[ing],' often many years later, 'the conduct underlying [a] conviction.' \" 138 S.Ct. at 1218 (quoting Johnson , 135 S.Ct. at 2562, and citing Taylor , 495 U.S. at 601-02, 110 S.Ct. 2143 ); see also Barrett , 903 F.3d at 181, 2018 WL 4288566, at *12 (\"[T]he mandate for a categorical approach to residual definitions of violent crimes has developed in a singular context: judicial identifications of what crimes (most often, state crimes) of prior conviction fit federal definitions of violent crimes so as to expose a defendant to enhanced penalties or other adverse consequences in subsequent federal proceedings.\"). Importantly, the look-back problem doesn't arise with respect to § 924(c), which serves an altogether different function from the statutes at issue in Johnson and Dimaya and operates differently in order to achieve that function. The ACCA identifies \"previous convictions\" for the purpose of applying a recidivism-based sentencing enhancement to three-time felons who later possess firearms in violation of 18 U.S.C. § 922(g). See 18 U.S.C. § 924(e)(1) (emphasis added). Similarly, § 16(b) -as incorporated by the INA-classifies certain prior convictions as \"crime[s] of violence\" for the purpose of rendering aliens removable. See 18 U.S.C. § 16 ; 8 U.S.C. § 1101(a)(43)(F) ; 8 U.S.C. § 1227(a)(2)(A)(iii). Section 924(c), by contrast, operates entirely in the present-it creates a new and distinct offense for any person who \"during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.\" 18 U.S.C. § 924(c)(1)(A). So, unlike in the ACCA and § 16 contexts-where courts have to look backwards in time to consider past crimes remote from (and wholly unconnected to) the charged offense, § 924(c)(3)'s" }, { "docid": "10667956", "title": "", "text": "for purposes of ACCA. Id. “[E]ven if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence.” Id. Thus, the Court clarified that sentencing courts should engage in “an elements-only inquiry”; “[a]ll that counts under [ACCA] ,.. are ‘the elements of the statute of conviction.’ ” Id. at 2251-52 (quoting Taylor, 495 U.S. at 601, 110 S.Ct. 2143). This is true even if the “sentencing judge knows (or can easily discover) that the defendant carried out a ‘real’ burglary.” Id. at 2251. The Court gave three basic justifications for limiting the ACCA inquiry to elements, rather than treating as divisible a non-generic burglary statute that lists alternative means for satisfying a particular element. First, it determined that ACCA’s text favors this result. Id. at 2252. Second, “a construction of ACCA allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns” because “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.” Id. (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). And third, “an elements-focus avoids unfairness to defendants,” given that “[statements of ‘non-elemental fact’ in the records of prior convictions are prone to error precisely, because their proof is unnecessary.” Id. at 2253 (citing Descamps, 133 S.Ct. at 2288-89). Because such facts are immaterial to the conviction, defendants have no incentive to contest them during the state court proceedings and indeed may be barred from doing so. See id. Accordingly, the Eighth Circuit “erred in applying the modified categorical approach to determine the means by which Mathis committed his pri- or crimes.” Id. In addition, the Court laid out a procedure for sentencing courts to follow in determining whether a conviction under a state burglary statute qualifies as a predicate offense under ACCA. When presented with a conviction under “an alternatively phrased statute,” the sentencing court must first “determine whether its listed items are elements or means.” Id. at 2256. If the items are elements, the" }, { "docid": "11309878", "title": "", "text": "Apprendi 530 U.S. at 490, 120 S.Ct. 2348). If Apprendi applies, the district judge is usually limited to the formal categorical approach, and any remaining elements of the federal sentencing enhancement must be found by a jury beyond a reasonable doubt. In some cases (like this one) where the federal sentencing enhancement “invites inquiry into the underlying facts of the case,” Borrome v. Att’y Gen. of U.S., 687 F.3d 150, 155 (3d Cir.2012), we have modified the categorical approach, permitting the district judge to “evaluate whether the factual elements of the analogous federal crime were necessarily proven at the time of the defendant’s conviction on the state charges.” United States v. Rood, 679 F.3d 95, 98 (2d Cir. 2012) (applying the modified categorical approach to 18 U.S.C. § 3559(e)); see 18 U.S.C. § 3559(e) (focusing on whether the state sex offense involves “conduct that would be a Federal sex offense” and thereby inviting an inquiry into the facts underlying the defendant’s conviction (emphasis added)). Under this modified categorical approach, the judge may consider only those facts that were “necessarily admitted” by the defendant in his prior criminal proceeding — that is, facts found in the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). On the other hand, if Apprendi does not apply, then the district judge is free to make any factual findings related to sentencing, just as he is when finding facts that trigger enhancements under the Sentencing Guidelines that would not increase the defendant’s maximum statutory sentence. See, e.g., United States v. Grier, 475 F.3d 556, 562 (3d Cir.2006) (en banc) (holding that Apprendi does not limit a district court’s ability to engage in judicial fact-finding within the permissible sentencing range so long as that fact-finding would not trigger an increase in the defendant’s maximum statutory sentence). Here, Apprendi’s restriction on judicial fact-finding does not apply because the mandatory life sentence in § 3559(e) does not exceed Pavulak’s" }, { "docid": "11309877", "title": "", "text": "comparing the Delaware crime of unlawful sexual contact in the third degree with the federal crime of sexual abuse of a minor because the federal crime required a victim under twelve years old while the Delaware crime did not contain an age cut-off). Consequently, we cannot conclude, as a matter of law, that Pavulak’s prior state convictions necessarily constitute a federal sex offense. Our inquiry does not end there: the trier of fact might find sufficient facts underlying Pavulak’s prior Delaware convictions to satisfy the two additional requirements of the federal crime of aggravated abuse of children. Who — the judge or the jury — is allowed to engage in that fact-finding? Under the familiar Apprendi rule, the Fifth Amendment’s Due Process Clause and Sixth Amendment’s Jury Trial Guarantee require “any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum [to] be submitted to a jury and proved beyond a reasonable doubt.” United States v. Chorin, 322 F.3d 274, 278 (3d Cir.2003) (citing Apprendi 530 U.S. at 490, 120 S.Ct. 2348). If Apprendi applies, the district judge is usually limited to the formal categorical approach, and any remaining elements of the federal sentencing enhancement must be found by a jury beyond a reasonable doubt. In some cases (like this one) where the federal sentencing enhancement “invites inquiry into the underlying facts of the case,” Borrome v. Att’y Gen. of U.S., 687 F.3d 150, 155 (3d Cir.2012), we have modified the categorical approach, permitting the district judge to “evaluate whether the factual elements of the analogous federal crime were necessarily proven at the time of the defendant’s conviction on the state charges.” United States v. Rood, 679 F.3d 95, 98 (2d Cir. 2012) (applying the modified categorical approach to 18 U.S.C. § 3559(e)); see 18 U.S.C. § 3559(e) (focusing on whether the state sex offense involves “conduct that would be a Federal sex offense” and thereby inviting an inquiry into the facts underlying the defendant’s conviction (emphasis added)). Under this modified categorical approach, the judge may consider only those" }, { "docid": "9018307", "title": "", "text": "instance, the plurality reasoned that \"the absence\" from § 16\"of terms alluding to a crime's circumstances, or its commission, makes a [conduct]-based interpretation an uncomfortable fit.\" 138 S.Ct. at 1218. But again, § 924(c) is different. Not only (as already explained) does the statute's operative provision refer exclusively to conduct, but its definitional provision (i.e. , the residual clause itself) also contains conduct-based language-namely, its requirement that the risk of force arise \"in the course of committing the offense.\" 18 U.S.C. § 924(c)(3)(B). 5 Textual indicia aside, the Supreme Court has also emphasized practical considerations in deciding between categorical and conduct-based interpretations. As already explained, in initially devising the categorical approach in Taylor -and thereafter applying it in Johnson and Dimaya -the Supreme Court underscored the \"utter impracticability\" of applying a conduct-based approach retrospectively to determining the violence of prior crimes. E.g. , Johnson , 135 S.Ct. at 2562. In particular, the Court in Taylor fretted about the prospect that mounds of evidence would need to be introduced at sentencing in order to reconstruct the circumstances underlying long-since-passed convictions-potentially turning sentencing proceedings into de facto mini-trials. See 495 U.S. at 601-02, 110 S.Ct. 2143. That \"look-back\" concern (our term, not the Supreme Court's) has continued to animate the Court's application of a categorical approach in the ACCA and § 16 contexts. As the plurality summarized in Dimaya : \"This Court has often described the daunting difficulties of accurately 'reconstruct[ing],' often many years later, 'the conduct underlying [a] conviction.' \" 138 S.Ct. at 1218 (quoting Johnson , 135 S.Ct. at 2562, and citing Taylor , 495 U.S. at 601-02, 110 S.Ct. 2143 ); see also Barrett , 903 F.3d at 181, 2018 WL 4288566, at *12 (\"[T]he mandate for a categorical approach to residual definitions of violent crimes has developed in a singular context: judicial identifications of what crimes (most often, state crimes) of prior conviction fit federal definitions of violent crimes so as to expose a defendant to enhanced penalties or other adverse consequences in subsequent federal proceedings.\"). Importantly, the look-back problem doesn't arise with respect to § 924(c), which" }, { "docid": "19628475", "title": "", "text": "should require this Court to revisit its precedents in an appropriate case. Justice THOMAS, concurring. I join the Court's opinion, which faithfully applies our precedents. The Court holds that the modified categorical approach cannot be used to determine the specific means by which a defendant committed a crime. Ante, at 2253 - 2254. By rightly refusing to apply the modified categorical approach, the Court avoids further extending its precedents that limit a criminal defendant's right to a public trial before a jury of his peers. In Almendarez-Torres v. United States, 523 U.S. 224, 246-247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court held that the existence of a prior conviction triggering enhanced penalties for a recidivist was a fact that could be found by a judge, not an element of the crime that must be found by a jury. Two years later, the Court held that \"any fact that increases the penalty for a crime beyond the prescribed statutory maximum\" is an element of a crime and therefore \"must be submitted to a jury, and proved beyond a reasonable doubt.\" Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; see id., at 489-490, 120 S.Ct. 2348. But Apprendi recognized an exception for the \"fact of a prior conviction,\" instead of overruling Almendarez-Torres. See 530 U.S., at 490, 120 S.Ct. 2348. I continue to believe that the exception in Apprendi was wrong, and I have urged that Almendarez-Torres be reconsidered. See Descamps v. United States, 570 U.S. ----, ----, 133 S.Ct. 2276, 2294-2295, 186 L.Ed.2d 438 (2013) (THOMAS, J., concurring in judgment). Consistent with this view, I continue to believe that depending on judge-found facts in Armed Career Criminal Act (ACCA) cases violates the Sixth Amendment and is irreconcilable with Apprendi . ACCA improperly \"allows the judge to 'mak[e] a finding that raises [a defendant's] sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.' \" Descamps, supra, at ---- - ----, 133 S.Ct., at 2294-2295 (opinion of THOMAS, J.)" }, { "docid": "19628452", "title": "", "text": "110 S.Ct. 2143. Congress well knows how to instruct sentencing judges to look into the facts of prior crimes: In other statutes, using different language, it has done just that. See United States v. Hayes, 555 U.S. 415, 421, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (concluding that the phrase \"an offense ... committed\" charged sentencers with considering non-elemental facts); Nijhawan v. Holder, 557 U.S. 29, 36, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (construing an immigration statute to \"call[ ] for a 'circumstance-specific,' not a 'categorical' interpretation\"). But Congress chose another course in ACCA, focusing on only \"the elements of the statute of conviction.\" Taylor, 495 U.S., at 601, 110 S.Ct. 2143. Second, a construction of ACCA allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns. This Court has held that only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). That means a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense. See Shepard, 544 U.S., at 25, 125 S.Ct. 1254 (plurality opinion); id., at 28, 125 S.Ct. 1254 (THOMAS, J., concurring in part and concurring in judgment) (stating that such an approach would amount to \"constitutional error\"). He is prohibited from conducting such an inquiry himself; and so too he is barred from making a disputed determination about \"what the defendant and state judge must have understood as the factual basis of the prior plea\" or \"what the jury in a prior trial must have accepted as the theory of the crime.\" See id., at 25, 125 S.Ct. 1254 (plurality opinion); Descamps, 570 U.S., at ----, 133 S.Ct., at 2288. He can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. And third, an elements-focus avoids unfairness to defendants. Statements of \"non-elemental fact\" in the records of prior convictions are" }, { "docid": "15801761", "title": "", "text": "507 F.3d 142, 151 (2d Cir.2007) (quoting United States v. Brown, 52 F.3d 415, 425 (2d Cir.1995)). Notably, the fact of a prior conviction is the only form of evidence that raises a statutory maximum penalty that need not be found by a jury, and may instead by found by a judge. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435,(2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt.”). A finding that a defendant qualifies for the ACCA enhancement also affects his sentencing calculation under the United States Sentencing Guidelines. Under the Guidelines in effect when Villanueva was sentenced, and under the Guidelines in effect today, the ACCA guideline was found at section 4B1.4. It raises the Base Offense Level for being a felon in possession of a firearm from as low as 20 to as high as 34. Compare U.S.S.G. § 2K2.1 (providing Base Offense Levels for firearms offenses) with U.S.S.G. § 4B1.4 (providing Base Offense Levels for ACCA status offenders). When Villanueva was sentenced, as is also true today, courts were required to engage in “the categorical approach” announced in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a defendant is eligible for an ACCA enhancement. This approach has, since Taylor, required the court to determine only whether the “statutory definitions—Le., the eleménts—of a defendant’s prior offenses, and not ... the particular facts underlying those convictions,” meet the definition of “violent felony” under ACCA. Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) (internal quotation marks and citations omitted). The purpose of this approach is well-established: by requiring sentencing courts to determine only whether a prior conviction categorically constitutes a qualifying prior conviction, rather than whether a defendant’s prior conduct so qualifies, the categorical approach protects a defendant’s Sixth Amendment right to a trial by jury. Taylor, 495 U.S. at 601-02, 110 S.Ct." }, { "docid": "9018287", "title": "", "text": "that it \"intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.\" Id. Second, the Taylor Court stressed that in the ACCA context, \"the practical difficulties and potential unfairness of a factual approach [would be] daunting.\" Id. at 601, 110 S.Ct. 2143. In particular, the Court worried about the amount of evidence that might need to be introduced at a sentencing hearing in order to reconstruct the circumstances underlying a defendant's prior (and often long-since-passed) convictions. Id. Relatedly, the Court anticipated a Sixth Amendment problem that later decisions would amplify-namely, that judicial factfinding at sentencing about the real-world facts of crimes that led to prior convictions could \"abridg[e a defendant's] right to a jury trial[.]\" Id. ; see also Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (\"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\"). In short, the Taylor Court feared that if the parties could introduce evidence bearing on the violence of the defendant's past crimes, then sentencing proceedings might devolve into full-blown mini-trials (hence the impracticability) in which judges, rather than juries, were doing the factfinding (hence the Sixth Amendment concern). See 495 U.S. at 601-02, 110 S.Ct. 2143. For these reasons-the text's focus on \"convictions\" and the impracticability (and unfairness) of effectively re-litigating the seriousness of stale crimes long after the fact-the Taylor Court concluded that for purposes of deciding whether a prior conviction constitutes a \"violent felony,\" the \"only plausible interpretation\" of § 924(e)(2)(B)(ii) is that it \"generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense,\" and not to the actual circumstances of the defendant's crime. Id. at 602, 110 S.Ct. 2143. 2 The Supreme Court next applied the categorical approach in Leocal v. Ashcroft , 543 U.S. 1," }, { "docid": "6357840", "title": "", "text": "is confined to the post-conviction contexts of criminal sentencing and immigration deportation cases. See Descamps, 133 S.Ct. at 2288 (explaining that the categorical approach avoids “serious Sixth Amendment concerns” under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that arise when a judge would make a post-conviction finding regarding underlying factual predicate). Weingarten cites no recent case law for the proposition that the categorical approach applies outside the post-conviction context. Even if the categorical approach does apply outside of the sentencing and immigration contexts, it was and is not clear that § 3283 calls for it. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), established the modem doctrine for when to apply the categorical approach. Taylor held that 18 U.S.C. § 924(e)—a provision of the Armed Career Criminal Act that enhanced sentences for felons in possession of firearms in violation of 18 U.S.C. § 922(g) who were previously convicted of certain predicate offenses— required courts to apply the categorical approach for three reasons: (1) the language of § 924(e) referred to previous “convictions” rather than previous offenses a person “has committed,” which indicated that Congress was focused on the legal charges rather than the underlying conduct; (2) the legislative history of the provision revealed Congress favored a categorical approach for defining § 924(e) predicate offenses; and (3) applying a fact-based approach to § 924(e) posed “daunting” “practical difficulties and potential unfairness.” 495 U.S. at 600-02, 110 S.Ct. 2143; see also Descamps, 133 S.Ct. at 2287-89 (describing “three grounds for establishing [an] elements-centric, ‘formal categorical approach’ ”). None of these conditions is met here. First, unlike § 924(e), § 3283 refers to offenses that “involv[e]” certain abusive conduct, rather than certain convictions. Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), stands as another counter-example. The Leocal Court applied the categorical approach to a statute that defined whether a prior conviction qualified as a “crime of violence” by referring to the prior “offense,” the “element[s]” of that offense, and the “nature” of that offense. Id." }, { "docid": "6357839", "title": "", "text": "of the ‘generic’ crime .... ”). He asserts that § 2423 offenses do not qualify categorically as “offense[s] involving the sexual ... abuse ... of a child” because they are crimes of intent, which do not require proof of actual sexual abuse to sustain a conviction. See United. States v. Broxmeyer, 616 F.3d 120, 130 n.8 (2d Cir. 2010); United States v. Han, 230 F.3d 560, 563 (2d Cir. 2000). Therefore, Weingarten concludes, even though his offense conduct in fact involved sexual abuse of a child, the charges against him were not subject to the extended § 3283 limitations period. It was not obvious at the time of Wein-garten’s motion to dismiss, nor is it today, that a court must apply the categorical approach, rather than a fact-specific analysis, to determine whether an offense is subject to § 3282 or § 3283. As an initial matter, it is- far from clear the categorical approach applies in the context of criminal statutes of limitations for child sex abuse cases. The Supreme Court’s modern categorical approach jurisprudence is confined to the post-conviction contexts of criminal sentencing and immigration deportation cases. See Descamps, 133 S.Ct. at 2288 (explaining that the categorical approach avoids “serious Sixth Amendment concerns” under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that arise when a judge would make a post-conviction finding regarding underlying factual predicate). Weingarten cites no recent case law for the proposition that the categorical approach applies outside the post-conviction context. Even if the categorical approach does apply outside of the sentencing and immigration contexts, it was and is not clear that § 3283 calls for it. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), established the modem doctrine for when to apply the categorical approach. Taylor held that 18 U.S.C. § 924(e)—a provision of the Armed Career Criminal Act that enhanced sentences for felons in possession of firearms in violation of 18 U.S.C. § 922(g) who were previously convicted of certain predicate offenses— required courts to apply the categorical approach for three reasons:" }, { "docid": "12148281", "title": "", "text": "States v. Brown, 765 F.3d 185, 188 (3d Cir. 2014). When there was no objection below, the challenging party must also meet the requirements of the plain-error standard by demonstrating the error is clear, prejudicial, and affects the fairness or reputation of the judicial proceeding. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). . The Supreme Court also noted in Mathis that allowing a sentencing judge to find facts other than “the simple fact of a prior conviction” would raise “serious Sixth Amendment concerns” because \"only a jury, and not a judge, may find facts that increase a maximum penalty.” Mathis, 136 S.Ct. at 2252 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). And further, \"an elements-focus avoids unfairness to defendants” as \"[s]tatements of non-elemental fact' in the records of prior convictions are prone to error precisely because their proof is unnecessary.” Id. at 2253 (quoting Descamps, 133 S.Ct. at 2288-89). . Moreover, for the same reasons set forth in Mathis regarding the use of the categorical approach under ACCA, applying the categorical approach to § 4B1.5 avoids possible unfairness to defendants that would result from basing an increased penalty on something not legally necessary to a prior conviction. Mathis, 136 S.Ct. at 2253. . Because Pavulak was litigated before Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which extended Apprendi to mandatory-minimum sentences, the defendant advanced an Apprendi claim that § 3559(e)(1) increased his maximum punishment, claiming this punishment would otherwise be only fifty years under 18 U.S.C. § 2251(e). Pavulak, 700 F.3d at 673. Instead of disposing of the defendant’s claim on the ground that Apprendi does not apply to recidivist enhancements, see Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, we embarked on an extensive analysis of whether the defendant's statutory maximum was increased by § 3559(e)(1), Pavulak, 700 F.3d at 673. This inquiry required determining what the statutory maximum would have been under § 2251(e), which depended on whether the defendant had two or more" }, { "docid": "9278582", "title": "", "text": "to determine the underlying conduct from years-old or even decades-old documents with varying levels of factual detail. See Taylor v. United States , 495 U.S. 575, 601-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The factual statements that are contained in those documents are often \"prone to error.\" Mathis v. United States , 579 U.S. ----, ----, 136 S.Ct. 2243, 2252, 195 L.Ed.2d 604 (2016). The categorical approach avoids the unfairness of allowing inaccuracies to \"come back to haunt the defendant many years down the road.\" Id. , at ----, 136 S.Ct., at 2253. The Court has echoed that reasoning time and again. See, e.g. , Dimaya , 584 U.S., at ----, 138 S.Ct., at 1218 (plurality opinion); Johnson , 576 U.S., at ----, 135 S.Ct., at 2561 ; Descamps v. United States , 570 U.S. 254, 270, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; Chambers v. United States , 555 U.S. 122, 125, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Second , in the prior-conviction cases, the Court insisted on the categorical approach to avoid \"Sixth Amendment concerns.\" Descamps , 570 U.S. at 269, 133 S.Ct. 2276. The Sixth Amendment, as interpreted by this Court's precedents, does not allow a judge (rather than a jury) to make factual determinations that increase the maximum penalty. See Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Court has read its Sixth Amendment precedents to require the categorical approach. Under the categorical approach, the judge looks only to the fact of conviction and the statutory definition of the prior offense. The Court has reiterated those Sixth Amendment concerns in countless categorical-approach cases. See, e.g. , Dimaya , 584 U.S., at ----, 138 S.Ct., at 1218 (plurality opinion); Mathis , 579 U.S., at ----, 136 S.Ct., at 2252 ; Shepard v. United States , 544 U.S. 13, 24-25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion); Taylor , 495 U.S. at 601, 110 S.Ct. 2143. In short, the Court in Johnson and Dimaya employed something akin to the constitutional avoidance doctrine to read" }, { "docid": "19394386", "title": "", "text": "2010). That law does not, on its face, require the jury to determine whether the entry itself was unlawful, a required element of the so-called \"generic\" offense of burglary that qualifies as an ACCA predicate. See Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The majority holds that a court may not review the underlying facts of Descamps' state crime to determine whether he entered the building unlawfully and, thus, that his burglary conviction may not be used as a predicate offense under ACCA. While I agree with the Court's conclusion, I disagree with its reasoning. I have previously explained that ACCA runs afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it allows the judge to \"mak[e] a finding that raises [a defendant's] sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.\" James v. United States, 550 U.S. 192, 231, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (dissenting opinion) (internal quotation marks omitted). Under the logic of Apprendi, a court may not find facts about a prior conviction when such findings increase the statutory maximum. This is so whether a court is determining whether a prior conviction was entered, see 530 U.S., at 520-521, 120 S.Ct. 2348 (THOMAS, J., concurring), or attempting to discern what facts were necessary to a prior conviction. See James, supra , at 231-232, 127 S.Ct. 1586 (THOMAS, J., dissenting). In either case, the court is inappropriately finding a fact that must be submitted to the jury because it \"increases the penalty for a crime beyond the prescribed statutory maximum.\" Apprendi, supra, at 490, 120 S.Ct. 2348 In light of the foregoing, it does not matter whether a statute is \"divisible\" or \"indivisible,\" see ante, at 2278 - 2280, and courts should not have to struggle with the contours of the so-called \"modified categorical\" approach. Ibid. The only reason Descamps' ACCA enhancement is before us is \"because this Court has not yet reconsidered Almendarez-Torres v. United" }, { "docid": "9278583", "title": "", "text": "to avoid \"Sixth Amendment concerns.\" Descamps , 570 U.S. at 269, 133 S.Ct. 2276. The Sixth Amendment, as interpreted by this Court's precedents, does not allow a judge (rather than a jury) to make factual determinations that increase the maximum penalty. See Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Court has read its Sixth Amendment precedents to require the categorical approach. Under the categorical approach, the judge looks only to the fact of conviction and the statutory definition of the prior offense. The Court has reiterated those Sixth Amendment concerns in countless categorical-approach cases. See, e.g. , Dimaya , 584 U.S., at ----, 138 S.Ct., at 1218 (plurality opinion); Mathis , 579 U.S., at ----, 136 S.Ct., at 2252 ; Shepard v. United States , 544 U.S. 13, 24-25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion); Taylor , 495 U.S. at 601, 110 S.Ct. 2143. In short, the Court in Johnson and Dimaya employed something akin to the constitutional avoidance doctrine to read the statutes at issue to avoid practical and Sixth Amendment problems. In the words of Justice THOMAS, the \"categorical approach was never really about the best reading of the text.\" Dimaya , 584 U.S., at ----, 138 S.Ct., at 1256 (dissenting opinion). As Judge Raggi has perceptively stated: \"[C]onstitutional avoidance informed the original categorical-approach mandate.\" United States v. Barrett , 903 F.3d 166, 179 (CA2 2018). But neither of the two reasons identified in Johnson and Dimaya applies to 18 U.S.C. § 924(c)(3)(B) -not even a little. First , § 924(c) does not require examination of old conduct underlying a prior conviction. Section 924(c) operates entirely in the present. In a § 924(c) prosecution, there are ordinarily two charged crimes: the underlying crime and the § 924(c) offense. Here, for example, the defendants were charged with conspiracy to commit robbery and with the § 924(c) offense. The defendant's conduct during the underlying crime is part of the § 924(c) offense. The conduct charged in the § 924(c) offense is in front of the jury (if" }, { "docid": "19603382", "title": "", "text": "elements of the statute under which the defendant was convicted and (2) the fact of conviction, and exclude any evaluation of the particular facts or conduct underlying the prior conviction. In reaching this conclusion, the Court started with the statutory text but hardly found it conclusive. See id . at 600-01, 110 S.Ct. 2143 (1990) (\"First, the language of § 924(e)generally supports the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.... Read in ... context, [the text] most likely refers to the elements of the statute of conviction, not to the facts of each defendant's conduct\" (emphasis added) ). Rather, what appeared to seal the deal in favor of the \"categorical approach\" was the Court's serious concern that, in the context of prior convictions , \"the practical difficulties and potential unfairness of a factual approach [would be] daunting.\" Id. at 601, 110 S.Ct. 2143. In this regard, the Court stressed both the impracticality of attempting to relitigate potentially long-ago events, as well as the Sixth Amendment problem that would be created if sentencing judges were to make factual findings about the nature of the conduct underlying a defendant's prior conviction. Id. at 601-02, 110 S.Ct. 2143 ; see also Descamps v. United States , 570 U.S. 254, 269-70, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (emphasizing \"the categorical approach's Sixth Amendment underpinnings,\" as well as the \" 'daunting' difficulties and inequities that first encouraged [the Taylor Court] to adopt the categorical approach\"). While the precise question resolved by Taylor was whether a defendant who had in fact committed \"burglary,\" as federal law defines that term, but was convicted under a broader state statute should be treated as having a \"burglary\" conviction when applying § 924(e), the Supreme Court subsequently confirmed that the \"categorical approach\" also applied to the \"residual clause\" portion of the \"violent felony\" definition, see James v. United States , 550 U.S. 192, 201-02, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). It" }, { "docid": "9018286", "title": "", "text": "not only the idea that the definition of \"violent felony\" should vary from state to state, but also the notion that the government, in seeking to prove the violence of the underlying crime, could introduce evidence about the \"particular facts\" of the defendant's conduct, and instead adopted what the Court dubbed-and we still call-a \"categorical approach.\" Id . at 598-602, 110 S.Ct. 2143. In explaining why the ACCA's enumerated-offenses clause requires the categorical approach, the Taylor Court emphasized two factors-one textual, the other practical. First, the Court concluded that when read in context, § 924(e)(2)(B)(ii)\"most likely refers to the elements of the statute of conviction, not to the facts of each defendant's conduct.\" Id. at 600-01, 110 S.Ct. 2143. The reason, the Court explained, is that the language of the ACCA's operative provision, § 924(e)(1), \"refers to 'a person who ... has three previous convictions' for-not a person who has committed-three previous violent felonies or drug offenses.\" Id. at 600, 110 S.Ct. 2143. Congress's targeted focus on \"convictions\" rather than conduct, the Court reasoned, indicated that it \"intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.\" Id. Second, the Taylor Court stressed that in the ACCA context, \"the practical difficulties and potential unfairness of a factual approach [would be] daunting.\" Id. at 601, 110 S.Ct. 2143. In particular, the Court worried about the amount of evidence that might need to be introduced at a sentencing hearing in order to reconstruct the circumstances underlying a defendant's prior (and often long-since-passed) convictions. Id. Relatedly, the Court anticipated a Sixth Amendment problem that later decisions would amplify-namely, that judicial factfinding at sentencing about the real-world facts of crimes that led to prior convictions could \"abridg[e a defendant's] right to a jury trial[.]\" Id. ; see also Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (\"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the" }, { "docid": "7230564", "title": "", "text": "of the Shepard Court acknowledged, permitting a federal court to find facts that would increase a statutory sentencing range poses an obvious problem under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Shepard, 544 U.S. at 26, 125 S.Ct. 1254 (plurality op.); see Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (holding that the Sixth Amendment prohibits, inter alia, imposing a statutory minimum penalty based on facts not admitted by the defendant or found by a jury); United States v. Gonzalez, 420 F.3d 111, 129 (2d Cir.2005) (“The Apprendi rule applies to the resolution of any fact that would substitute an increased sentencing range for the one otherwise applicable to the case.” (emphasis added)). Even though the existence of a prior conviction may be conclusively determined by a judge, the facts underlying that conviction remain subject to the Apprendi rule. Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Accordingly, where, as here, the prior conviction followed a plea of guilty, courts may rely only on facts “necessarily admitted” by the defendant in the course of the prior criminal proceeding. Id. at 16, 125 S.Ct. 1254. Under the modified categorical approach, facts “necessarily admitted” may, of course, be drawn from the statutory language of the crime to which the defendant pleaded guilty. Id.; see Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Beyond the text of the statute itself, however, the Supreme Court in Shepard held that courts may find facts based only upon “adequate judicial record evidence”: the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16, 20, 125 S.Ct. 1254. ii. The Age of the Ohio Victim In this case, of the documents purporting to be “judicial record evidence” of the 1991 conviction, the District Court had before it a “Municipal Court Statement” (the “Statement”), which specified the age of the victim, and the Bill of Information, the document to which Rood actually pleaded guilty, which" } ]

[ { "docid": "6843095", "title": "", "text": "the question of proof. We could remand the case with instructions to the Tax Court to take further evidence as to that portion of the taxpayer’s purchase price which was properly allocable to the building as distinguished from the land. We feel, however, that on this record the taxpayer has sufficiently established his $300,000 allocation. The Commissioner had his opportunity in the proceedings which have already taken place in the Tax Court to controvert the taxpayer’s evidence. This he did not do but chose, instead, to rely on his basic thesis that the taxpayer had no investment which was entitled to depreciation. The decision of the Tax Court is reversed with directions to recompute the taxpayer’s deficiencies in accord with the views herein expressed. . Although the deficiencies determined were attributable to several adjustments, only two of these items were contested in the Tax Court. One, concerning the deduction of fees accrued and paid in 1952 in connection with an application for a television license, is not raised in the petition for review and is not before us. . General code and regulations references herein will be to the Internal Revenue Code of 1954 and the Regulations issued thereunder. References to the 1939 Code and its Regulations 118 will be specifically designated. . In the 90-day, letter the Commissioner said, “It is held that no part of the amount of $700,000 paid by you in 1950 to acquire real estate which was subject to a lease granted by the previous owner may be allocated to the building constructed by the lessee under the terms of the lease, and, further, that no part of said purchase price may be allocated as a basis for annual amortization deductions”. . “(a) General rule. — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— “(1) of property used in the trade or business, or “(2) of property held for the production of income.” . § 167(b) (1); Regs. § 1.167(b)-l; Regs. 118, § 39.23 (l)-5. . Prior to Rowan, the" } ]

[ { "docid": "13863073", "title": "", "text": "does. The court concludes, therefore, after considering all of the evidence in the case, the entire record and briefs of counsel, that Myers has not met the burden imposed upon him by law to overcome the determination made by the Commissioner. The court, therefore, finds that Myers’ interests in the farms which are involved in the action, and to which reference has been hereinbefore made, were held primarily for sale to customers in the ordinary course of Myers’ trade or business as a dealer in real estate, and that the profits Myers realized upon their sale constituted ordinary income. This holding renders moot the questions as to depreciation on the Townsend Place assets and the holding period of the M.R.M. stock. The court will enter a final judgment denying plaintiff any relief, and dismissing the action on the merits of plaintiff’s costs. . The statutes involved in the action are: Internal Revenue Code of 1954 (26 U.S.C.): “SEC. 167. Depreciation. (a) General rule. — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— (1) of property used in the trade or business, or (2) of property held for the production of income. SEC. 1221. Capital asset defined. For purposes of this subtitle, the term ‘capital asset’ means property held by the taxpayer (■whether or not connected with his trade or business), but does not include— (1) stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business; SEC. 1222. Other terms relating to capital gains and- losses. For purposes of this subtitle— (E) Long-term, capital gam. — The term ‘long-term capital gain’ means gain from the sale or exchange of a capital asset held for more than 6 months, if and to the extent such gain is taken into account in computing gross income." }, { "docid": "6987420", "title": "", "text": "issue of fact exists, the party against whom the motion is made is entitled to the benefit of every inference that may reasonably be drawn in his favor. The court should not supplant the jury if there is any room whatever for disagreement. The record in this case is unlike those in which conduct may be thought by the judge to be prudent or negligent, as the case may be, but jurors could reasonably come to a contrary conclusion. In such cases it is an abuse of power to withdraw the case from the jury. Compare the majority and dissenting opinions in Brady v. Southern Railway Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943). When, however, the facts are plainly conclusive, the court’s function is to refuse submission to the jury and to decide the case as a matter of law. Since the record permitted only one finding, namely, that duration was indefinite, putting the question to the jury for a possible finding of fixed duration invited an answer based not on any fact in the record or any reasonable inference therefrom, but on speculation and caprice. The submission of a nondebatable issue is as much an interference with the traditional allocation of functions between judge and jury, and an injustice to the party entitled to a directed verdict, as directing a verdict when a proper jury question is present. Denying amortization for the reason that the capital asset is one of indefinite duration does not mean that the expenditure is lost to the taxpayer beyond retrieval. It merely means that the item is added to the capital account and will enter into the computation of gain or loss when the asset is disposed of or abandoned. The judgment of the District Court is Reversed and remanded for the entry of judgment in favor of the United States. . In addition to the authorities cited in our first opinion, we note two other cases. WHEC, Inc. v. Commissioner, 37 T.C. 821 (1962) (amounts paid to attorneys to acquire and perfect taxpayer’s broadcasting license not deductible as ordinary" }, { "docid": "22562315", "title": "", "text": "Year of Sale at a Gain, 20 Tax L. Rev. 615, 650 (1965). Mr. Justice White, with whom Mr. Justice Black and Mr. Justice Clark join, dissenting. In my opinion, the Court of Appeals was faithful to the congressional concept of depreciation and to the Internal Revenue Code and applicable Treasury Regulations. Accordingly, I would affirm. Section 167 (a) of the Internal Revenue Code of 1954 authorizes as a depreciation deduction only a “reasonable allowance” for exhaustion, wear and tear, and obsolescence. (Emphasis added.) This allowance was designed by Congress to enable the taxpayer to recover his net investment in wasting assets used in his trade or business or held for the production of income to the extent that the investment loses value through exhaustion, wear and tear, or obsolescence. In this manner the tax payer will be taxed only on the net, rather than the gross, income produced by the depreciable asset in accordance with the general congressional scheme to tax only net income. It was not, however, the intent of Congress to enable the taxpayer to recover more than his actual net investment and thereby to convert ordinary income into a capital gain through excessive depreciation. “Congress intended by the depreciation allowance not to make taxpayers a profit thereby, but merely to protect them from a loss.” Massey Motors v. United States, 364 U. S. 92, 101. See also Detroit Edison v. Commissioner, 319 U. S. 98, where the Court refused to allow the taxpayer to depreciate that portion of the initial investment of an asset that did not represent actual expenditure by it because borne by its customers. Accordingly, in judging whether a given depreciation deduction is “reasonable,” we should determine whether the deduction is designed to recover tax-free only the actual investment in the asset, Massey Motors, supra, at 105, or whether it is calculated instead to return a greater amount. It would be easy enough to compute depreciation if the taxpayer were required to wait until disposition of the asset, at which time he would know with precision his net investment, before he could claim" }, { "docid": "6951752", "title": "", "text": "purchase price of an 18-hole golf course which was attributable to the molding of the earth’s surface necessary to make a golf course?” Plaintiff, on the other hand, says the question is: “Is the item, golf course improvements, a depreciable asset under Section 167(a) of the Internal Revenue Code of 1954 as amended?” The Court is of the opinion that the District Director of Internal Revenue correctly disallowed the depreciation taken by the plaintiff on The Edinboro Golf Course. His reasons were as follows: “Allocation of costs, made out of original package purchases for an eighteen hole golf course (hard improvement) would be construed as a capital expenditure that is to be added to the cost of land allocation, and is not subject to an allowance for depreciation.” Plaintiff’s claim for refunds is based on Section 167 of the Internal Revenue Code, 1954. This Section provides: “There shall be allowed as a depreciation deduction a reasonble allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— “(1) of property used in the trade or business, or “(2) of property held for the production of income.” The regulations enacted pursuant to this Section indicated as follows: TITLE 26 C.F.R. § 1.167(a)-l “(a) Reasonable allowance. Section 167(a) provides that a reasonable allowance for the exhaustion, wear and tear, and obsolescence of property used in the trade or business or of property held by the taxpayer for the production of income shall be allowed as a depreciation deduction.” TITLE 26 C.F.R. § 1.167(a)-2 “The depreciation allowance in the case of tangible property applies only to that part of the property which is subject to wear and tear, to decay or decline from natural causes, to exhaustion, and to obsolescence. The allowance does not apply to inventories or stock in trade, or to land apart from the improvements or physical development added to it.” It is clear that land is not subject to depreciation allowance. The reason for this is that it has an unlimited useful life. The testimony of Ross Brown, Superintendent or Greens Keeper for Kahkwa Club Golf Course" }, { "docid": "3925665", "title": "", "text": "the case should be remanded for trial. Depreciation of Retail Franchise Contracts As to 184 of the retail franchise contracts acquired in 1959, taxpayer asserts that it is entitled to a depreciation deduction under Section 167(a) of the Internal Revenue Code (26 U.S.C. § 167 (a)), which provides: “There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) — (1) of property used in the trade or business.” The applicable regulation provides: “If an intangible asset is known from experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance. Examples are patents and copyrights. An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. No allowance will be permitted merely because, in the unsupported opinion of the taxpayer, the intangible asset has a limited useful life. No deduction for depreciation is allowable with respect to good will. * * (Treasury Regulation § 1.167(a)-3.) The prerequisites to a depreciation deduction for an intangible asset are (1) that the asset be shown to have a limited useful life and (2) that its length be able to be estimated “with reasonable accuracy.” A “reasonable certainty” or “reasonable approximation” of the fact and rate of depreciation or exhaustion is sufficient. Burnet v. Niagara Falls Brewing Co., 282 U.S. 648, 654-655, 51 S.Ct. 262, 75 L.Ed. 594. It is also settled that contracts with limited useful lives, like other business intangibles, may be the proper subject of a depreciation deduction. Nor is the useful life necessarily limited to the stated duration or termination period “when taxpayer can demonstrate, as he did here, that the contract will be extended over a longer period of time.” Commissioner of Internal Revenue v. Seaboard Finance Co., 367 F.2d 646, 653 (9th Cir. 1966). Franchise contracts are no exception (4 Mertens Law of Federal" }, { "docid": "8288308", "title": "", "text": "sold the property for its fair market value at a later date. This hardly constitutes abandonment of the property as required under the regulation. For the above reasons, we find that the taxpayer is not entitled to a deduction in 1962 for its alleged loss with respect to the 1929 paintings as obsolete non-depreciable property under Treas. Reg. § 1.165-2 and Section 165 of the Internal Revenue Code. III. SECTION 167 Section 167 of the Internal Revenue Code provides in pertinent part: Sec. 167. Depreciation. (a) General rule.- — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— (1) of property used in the trade or business, or (2) of property held for the production of income. * * # * 4fr * (f) Salvage value.— (1) General rule. — Under regulations prescribed by the Secretary or his delegate, a taxpayer may, for purposes of computing the allowance under subsection (a) with respect to personal property, reduce the amount taken into account as salvage value by an amount which does not exceed 10 percent of the basis of such property (as determined under subsection (g) as of the time as of which such salvage value is required to be determined). (2) Personal property defined.— For purposes of this subsection, the term “personal property” means depreciable personal property (other than livestock) with a useful life of 3 years or more acquired after the date of the enactment of the Revenue Act of 1962. (g) Basis for depreciation. — The basis on which exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be the adjusted basis provided in section 1011 for the purpose of determining the gain on the sale or other disposition of such property. The taxpayer argues in the further alternative that, assuming no loss is deductible under Section 165, a depreciation loss should be found under Section 167. This argument is, of course, inconsistent with the taxpayer’s earlier position with respect to Treas.Reg. § 1.165-2, “Obsolescence of Non-depreciable" }, { "docid": "14210010", "title": "", "text": "L.Ed. 416 (1940), “ ‘ * * * carrying on any trade or business,’ * * * involves holding one’s self out to others as engaged in the selling of goods or services.” See also the following cases construing the terms “trade or business” as used in section 174(a) (1), Internal Revenue Oode of 1954, 26 U.S.O.A. § 174(a) (1) (1955), dealing with research and experimental expenses: Boons v. Commissioner of Internal Revenue, 35 T.C. 1092 (1961), “ ‘trade or business’ presupposes an existing business with which the taxpayer is directly connected”; Mayrath v. Commissioner of Internal Revenue, 41 T.C. 582 (1964), “‘trade or business,’ is used in the practical sense of a going trade or business.” . Relied on in Radio Station V/BIR, Inc., 31 T.C. 803, 812-813 (1959). . “In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year— “(1) for the production or collection of income. “(2) for the management, conservation, or maintenance of property held for the production of income * * (Emphasis supplied.) . “§ 167. Depreciation. “(a) General rule — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— “(1) of property used in the trade or business * * . In KWTX, supra, the Commissioner introduced considerable evidence on renewal of television licenses. The Tax Court found as a fact that: “In the past a large number of these applications for renewal of television broadcasting licenses has been granted and none ever denied,” and concluded that: “While it is doubtless true that it will be within the power of the F.C.C. to refuse to grant a renewal of petitioner’s television license * * * nevertheless we think * * * that it is altogether unlikely that the F.C.C. will deny petitioner’s application for a renewal of its license.” . Treasury Regulation 1.167(a)-10(b), ■which provides that “[t]he period for depreciation of an asset shall begin when the asset is placed in service,” answers the" }, { "docid": "17249245", "title": "", "text": "share as ordinary and necessary business expense. He subsequently conceded that $1,500 of the total expenses of the transfer was properly not deductible but should be capitalized as an acquisition cost. He maintained, however, that he was entitled to deduct his share of the remaining expenses of $10,960 which he attributed to the FCC’s holding of a hearing on the matter. This deduction was disallowed by the Commissioner and the disallowance upheld by the Tax Court on the ground that all such transfer expenses must be capitalized as part of the cost of acquisition of the station, a capital asset. Internal Revenue Code of 1954, § 1221, 26 U.S.C. § 1221. The Commissioner here points out that it is well-established that the costs of obtaining a radio or television license (or the stock of companies controlling such licenses) are costs of obtaining capital assets and thus are not deductible as ordinary and necessary business expenses. KWTX Broadcasting Co., Inc. v. Commissioner of Internal Revenue, 31 T.C. 952, aff’d per curiam, 272 F.2d 406 (5th Cir. 1959); Radio Station WBIR, Inc. v. Commissioner of Internal Revenue, 31 T.C. 803 (1959). To the extent of the $1,500 conceded to be acquisition cost, taxpayer recognizes the general validity of this rule. As to the balance, however, taxpayer contends that the expenditure should be treated as an allowable deduction since it does not fall under Treas.Reg. § 1.-263(a)-l, 26 C.F.R. § 1.263(a)-l: “(a) * * * no deduction shall be allowed for— (1) Any amount paid out for new buildings or for permanent improvements or betterment made to increase the value of any property or estate * * * >> Taxpayer asserts that the expenses in issue should be deductible because they failed to enhance the value of the broadcast license. In this he mistakenly treats the license as having already been acquired. The Tax Court stated in response to taxpayer’s argument: “The petitioners are misled in their reliance on the above-quoted regulations, for a careful reading of them will reveal that the term ‘made to increase the value of any property’ is the" }, { "docid": "21283711", "title": "", "text": "its predecessor’s tax basis concerning such Items. Section 23 of the Internal Revenue Code of 1939 (26 U.S.C. § 23 (1952)) provided that : “§ 23. Deductions from gross income. “In computing net income there shall be allowed as deductions: * * * * * “(1) Depreciation. “A reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— “ (1) of property used in the trade or business, or “ (2) of property held for the production of income.” Treas. Reg. 103, § 19.23(1)-3 (1939 Code) ; Treas. Reg. Ill, § 29.28 (Z)-3 (1939 Code). These regulations read as follows : “See. 29.23(Z)-3. Depredation o} Intangible Property. — Intangibles, the use of which in the trade or business or in the production of income is definitely limited in duration, may be the subject of a depreciation allowance. Examples are patents and copyrights, licenses, and franchises Intangibles, the use of which in the business or trade or in the .production of income is not so limited, will not usually be a proper subject of such an allowance. If, however, an intangible asset acquired through capital outlay is known from experience to be of value in the business or in the production of income for only a limited period, the length of which can be estimated from experience with reasonable certainty, such intangible asset may be the subject of a depreciation allowance, provided the facts are fully shown in the return or prior thereto to the satisfaction of the Commissioner. No deduction for depreciation, including obsolescence, is allowable in respect of good will.” Defendant does not, for instance, dispute plaintiff’s depreciating, as part of the pipeline costs, the item of damages arising from the construction activity which plaintiff paid to compensate the landowners. See n. 5. Westinghouse Broadcasting Co. v. Commissioner, 309 F. 2d 279 (3d Cir. 1962), cert. denied, 372 U.S. 935 (1963). In 1965 the Internal Revenue Service issued Rev. Rul. 65-264, 1965-2 Cum. Bull. 53, providing that where oil and gas pipeline right-of-way costs (which may include costs of surveying, clearing, and grading the rights-of-way," }, { "docid": "2934163", "title": "", "text": "whether the expenditures should have been added to the depletion account as subsequent capital additions, the costs to plaintiff of obtaining some (if not all) of the 1948 rights are, in defendant’s view, capital additions which should have been added to the depletion account. Since allowances for depletion of a capital investment and deductions of ordinary expenses are mutually exclusive as applied to a single outlay, in that the mine owner may have one or the other but not both, it is once more pertinent to inquire, in the interest of clarity, whether recovery in this action is precluded by plaintiff’s failure to capitalize its substitute facilities expenditures for return to it through annual depletion charges. As indicated in the ruling by the Commissioner of Internal Revenue, the issue relates to depletion charges for the recovery of the cost of surface rights obtained by plaintiff from USSRMCO. Following are pertinent provisions of section 23 of the Internal Revenue Code of 1939: Sec. 23. Deductions from Gross Income. In computing net income there shall be allowed as deductions: (a) Expenses. — (1) Trade or Business Expenses.— (A) In General. — All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * * ****** (l) Depreciation. A reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) — (1) of property used in the trade or business * * *. (m) Depletion. In the case of mines,'oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. * * * (n) Basis for Depreciation and Depletion. The basis upon which depletion, exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be as provided in section 114. Section 114 provided, in pertinent part, as follows: 114. Basis for depreciation and" }, { "docid": "23551357", "title": "", "text": "five years. These figures apparently comply with the Treasury Regulations on depreciation. Treas.Reg. § 1.167(a)-3 (1956). These regulations permit a depreciation deduction for the cost of intangible assets if the life of the intangible can be estimated with reasonable accuracy. Not only the courts, but also the Commissioner, have agreed that a contract right with a limited useful life is the proper subject of an amortization deduction. 1954-1. Cum.Bul. 6, acquiescing in Stewart Title Guar. Co., 20 T.C. 630 (1953). It is unnecessary that such a contract be limited to its duration on paper when taxpayer can demonstrate, as he did here, that the contract will be extended over a longer period of time. As noted at the outset of this opinion, Seaboard’s cross petitions are protective in nature and, in the event of affirmance on the Commissioner’s petitions, Seaboard does not press its cross petitions. Affirmed on the petitions and cross petitions. . The Commissioner relied upon the following statute and regulation: Section 167 of the Internal Revenue Code of 1954, 26 U.S.C. § 167 (1964): “!67. Depreciation “(a) General rule. — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— “(1) of property used in the trade or business, or “(2) of property held for the production of income.” Treasury Regulations on Income Tax (1954 Code, 26 CFR: “Sec. 1.167 (a)-3 Intangibles. “If an intangible asset is known from experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance. Examples are patents and copyrights. An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. No allowance will be permitted merely because, in the unsupported opinion of the taxpayer, the intangible asset has a limited useful life. No deduction for depreciation is allowable with respect to goodwill. For rules with respect to" }, { "docid": "3925664", "title": "", "text": "taxable year ending August 31, 1960, plaintiff claimed a deduction of $121,832 for depreciation of 184 of the 207 retail contracts acquired from Johnson, together with a loss of $29,199 for retail contracts that terminated during that year. The Internal Revenue Service disallowed both deductions and plaintiff paid the deficiency asserted. After taxpayer’s subsequent refund claim was disallowed, it filed a complaint in the district court seeking a refund of $93,939.50 on income taxes paid for that taxable year, together with interest. This amount was based on taxpayer’s claim that it was entitled to a deduction of $149,263.88 for depreciation of the 184 retail franchise contracts and $31,389 for loss on contracts terminated during the taxable year. The district court granted the Government’s motion for summary judgment, holding that taxpayer was not entitled to either the depreciation or loss deduction. The taxpayer has asked us to direct the district court to enter summary judgment for it or to proceed to trial of this case. We have concluded that summary judgment was improperly granted and that the case should be remanded for trial. Depreciation of Retail Franchise Contracts As to 184 of the retail franchise contracts acquired in 1959, taxpayer asserts that it is entitled to a depreciation deduction under Section 167(a) of the Internal Revenue Code (26 U.S.C. § 167 (a)), which provides: “There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) — (1) of property used in the trade or business.” The applicable regulation provides: “If an intangible asset is known from experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance. Examples are patents and copyrights. An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. No allowance will be permitted merely because, in the unsupported opinion of the taxpayer, the" }, { "docid": "13452751", "title": "", "text": "gross income by the taxpayer as expenses incurred in operating the mines. The Commissioner and the Board of Tax Appeals held that they were capital investments. Section 234 (a) of the Revenue Act of 1918 (40 Stat. 1077) permits the deduction of ordinary and necessary expenses paid or incurred during the taxable year in carrying on the taxpayer’s trade or business. It also makes allowance for exhaustion, wear, and tear of property used in the business, including obsolescence; and in the case of mines allows deductions for depletion or depreciation of improvements according to the peculiar conditions in each ease, based upon cost, including cost of development not otherwise deducted. Section 215 (b), 40 Stat. 1069, provides generally that no deduction shall be allowed for “any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate.” Treasury Regulations 45, article 222, issued in 1920-, states that “all expenditures for plant and equipment shall be charged to .capital account recoverable through depreciation, while the mine is in the development stage,” and thereafter “the cost of major items of plant and equipment shall be capitalized, but the cost of minor items of equipment and plant, necessary to maintain the normal output and the cost of replacement may be charged to current expense of operation.” The Board found that the mines reached their maximum capacity in August, 1918, and thereafter it was necessary to make the expenditures here in question in order to maintain normal output. Although it found that the expenditures did not increase the productive capacity of the mines, it concluded that they were capital investments because they were made for equipment and improvements that would continue to be used beyond the taxable periods. It was also thought by the Board that, as the equipment enabled the taxpayer to produce coal more economically, it necessarily increased the value of the property. The taxpayer contends that, as the sole purpose of the expenditures was “to maintain the normal output,” they must be regarded as current expenses, that they are to" }, { "docid": "14210011", "title": "", "text": "for the production of income * * (Emphasis supplied.) . “§ 167. Depreciation. “(a) General rule — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— “(1) of property used in the trade or business * * . In KWTX, supra, the Commissioner introduced considerable evidence on renewal of television licenses. The Tax Court found as a fact that: “In the past a large number of these applications for renewal of television broadcasting licenses has been granted and none ever denied,” and concluded that: “While it is doubtless true that it will be within the power of the F.C.C. to refuse to grant a renewal of petitioner’s television license * * * nevertheless we think * * * that it is altogether unlikely that the F.C.C. will deny petitioner’s application for a renewal of its license.” . Treasury Regulation 1.167(a)-10(b), ■which provides that “[t]he period for depreciation of an asset shall begin when the asset is placed in service,” answers the question of when a taxpayer who is in business may begin to depreciate an asset. See also Hillcone Steamship Co. v. Commissioner of Internal Revenue, 22 T.C.M. 1096 (1963); Nulex, Inc. v. Commissioner of Internal Revenue, 30 T.C. 769 (1958). These authorities indicate that the taxpayer here is not entitled to the section 167(a) (1) deduction for the further reason that the television staff did not begin to serve Richmond until 1956 when broadcasting began. . Discussed supra, p. 905, as to the section 162(a) (1) trade or business expense deduction. ON PETITION FOR REHEARING PER CURIAM: In its complaint for a refund of income taxes paid for the years 1956 and 1957, the taxpayer alleged that the Commissioner erroneously disallowed deductions for those years which were claimed as net operating loss carry-overs from the taxable years 1953 through 1955. This court held that the taxpayer was not entitled to the claimed deductions. On Petition for Rehearing, the taxpayer, for the first time, claims the right to amortization deductions in the years 1956 and 1957" }, { "docid": "8288307", "title": "", "text": "taxpayer must show an intention to abandon the property in question, and an affirmative act of actual abandonment. Talache Mines v. United States, 218 F.2d 491, 498 (9th Cir. 1954), cert. denied, 350 U.S. 824, 76 S.Ct. 51, 100 L.Ed. 736 (1955); Beus v. Commissioner of Internal Revenue, 261 F.2d 176 (9th Cir. 1958); Belridge Oil Co. v. Commissioner, 11 B.T.A. 127 (1928); W. B. Davis & Son, Inc. v. Commissioner, 5 T.C. 1195 (1945); Miners Broadcasting Service, Inc. v. Commissioner, 23 T.C.M. 1618 (1964). The record here indicates neither an intention to abandon nor any act that could affirmatively show such an intention. The fact that the taxpayer held the allegedly abandoned property for sale is often probative of the fact that the property has not been abandoned. See, Bloomington Coca-Cola Bottling Co. v. Commissioner of Internal Revenue, 189 F.2d 14 (7th Cir. 1951); Blum v. Commissioner of Internal Revenue, 133 F.2d 447 (2d Cir. 1943). In the instant case, the taxpayer held the allegedly abandoned property for future use or sale, and then sold the property for its fair market value at a later date. This hardly constitutes abandonment of the property as required under the regulation. For the above reasons, we find that the taxpayer is not entitled to a deduction in 1962 for its alleged loss with respect to the 1929 paintings as obsolete non-depreciable property under Treas. Reg. § 1.165-2 and Section 165 of the Internal Revenue Code. III. SECTION 167 Section 167 of the Internal Revenue Code provides in pertinent part: Sec. 167. Depreciation. (a) General rule.- — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— (1) of property used in the trade or business, or (2) of property held for the production of income. * * # * 4fr * (f) Salvage value.— (1) General rule. — Under regulations prescribed by the Secretary or his delegate, a taxpayer may, for purposes of computing the allowance under subsection (a) with respect to personal property, reduce the amount taken into" }, { "docid": "15183645", "title": "", "text": "the tax court accordingly entered its decision declaring a deficiency in income tax of $307 for the tax year 1991 and denying the request for litigation costs. The taxpayers filed this appeal. II. A. Deficiency The Commissioner’s deficiency determinations are presumed correct and the taxpayer bears the burden of proving otherwise. See Kearns v. Commissioner, 979 F.2d 1176, 1178 (6th Cir.1992); Smith v. Commissioner, 926 F.2d 1470, 1474 (6th Cir.1991). We review the tax court’s findings of fact for clear error and its application of law de novo. Deductions are a matter of legislative grace, and the taxpayer must satisfy the specific statutory requirements claimed to reduce a tax liability. See New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348 (1934). Under Internal Revenue Code § 174(a), “[a] taxpayer may treat research or experimental expenditures which are paid or incurred by Mm during the taxable year in connection with Ms trade or business as expenses which are not chargeable to capital account. The expenditures so treated shall be allowed as a deduction.” 26 U.S.C. § 174(a). This section further provides in subpart (c), however, that: This section shall not apply to any expenditure for the acquisition or improvement of land, or for the acquisition or improvement of property to be used in connection with the research or experimentation and of a character which is subject to the allowance under section 167 (relating to allowance for depreciation, etc.) or section 611 (relating to allowance for depletion); but for purposes of this section, allowances under section 167, and allowances under section 611, shall be considered as expenditures. 26 U.S.C. § 174(c) (emphasis added). In general, § 167 provides that “[t]here shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) — (1) of property used in the trade or business, or (2) of property held for the production of income.” 26 U.S.C. § 167(a). The regulations expand on these provisions stating in part that “[t]he depreciation allowance in the case of tangible property" }, { "docid": "23393296", "title": "", "text": "property was held with a profit-making intent, rare indeed would be the homeowner who purchased a home several years ago who could not make the same claim. See Mel Dar Corp. v. Commissioner, 309 F.2d 525 (9th Cir. 1962), affg. a Memorandum Opinion of this Court. On this same point, we note that petitioners have never offered the house for sale. For the foregoing reasons, we sustain respondent’s disallowance of the business expense, depreciation, and loss deductions claimed by petitioners for 1969. As for 1970, we hold that petitioners’ lease arrangement with Schmitt constituted an “activity not engaged in for profit” within the meaning of section 183(c) and the applicable regulations. Accordingly, petitioners are entitled to the deductions claimed for interest and taxes, and respondent has so conceded. However, since petitioners’ gross income under this lease agreement did not exceed the amount of interest and taxes, there is no excess gross income against which to apply the claimed business and depreciation expenses. Therefore, such claimed deductions must be disallowed. Because of our holding on this issue, we find it unnecessary to reach the questions raised concerning the amount of the depreciation deductions taken on the house. Decision will be entered under Rule 155. Unless otherwise indicated all statutory references are to the Internal Revenue Code of 1954. SEC. 162. TRADE OR BUSINESS EXPENSES. (a) In General. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * * SEC. 167. DEPRECIATION. (a) General Rule — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— , (1) of property used in the trade or business, or (2) of property held for the production of income. SEC. 212. EXPENSES FOR PRODUCTION OF INCOME. In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year— (1) for tiie production or collection of income; (2) for" }, { "docid": "22562292", "title": "", "text": "exceeded the adjusted basis as of the first of the year, the use of the ship during 1957 “cost” the taxpayer “nothing.” By tying depreciation to sale price in this manner, the Commissioner has commingled two distinct and established concepts of tax accounting — depreciation of an asset through wear and tear or gradual expiration of useful life and fluctuations in the value of that asset through changes in price levels or market values. Section 167 (a) of the Internal Revenue Code of 1954 provides, in language substantially unchanged in over 50 years of revenue statutes: “There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) — (1) of property used in the trade or business, or (2) of property held for the production of income.” In United States v. Ludey, 274 U. S. 295, 300-301, the Court described depreciation as follows: “The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which should be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost.” See also Detroit Edison Co. v. Commissioner, 319 U. S. 98, 101. In so defining depreciation, tax law has long recognized the accounting concept that depreciation is a process of estimated allocation which does not take account of fluctuations in valuation through market appreciation. It is, of course, undisputed that the Commissioner may require redetermination of useful life or salvage value when it becomes apparent that either of these factors has been miscalculated. The fact of sale of an asset at an amount greater than its depreciated basis may be evidence of such a miscalculation. See Macabe Co.," }, { "docid": "6987421", "title": "", "text": "any fact in the record or any reasonable inference therefrom, but on speculation and caprice. The submission of a nondebatable issue is as much an interference with the traditional allocation of functions between judge and jury, and an injustice to the party entitled to a directed verdict, as directing a verdict when a proper jury question is present. Denying amortization for the reason that the capital asset is one of indefinite duration does not mean that the expenditure is lost to the taxpayer beyond retrieval. It merely means that the item is added to the capital account and will enter into the computation of gain or loss when the asset is disposed of or abandoned. The judgment of the District Court is Reversed and remanded for the entry of judgment in favor of the United States. . In addition to the authorities cited in our first opinion, we note two other cases. WHEC, Inc. v. Commissioner, 37 T.C. 821 (1962) (amounts paid to attorneys to acquire and perfect taxpayer’s broadcasting license not deductible as ordinary and necessary business expense under section 162 (a), but treated as a capital item); World Publishing Co. v. Commissioner, 35 T.C. 7 (1960), rev’d on other grounds, 299 F.2d 614 (8th Cir. 1962) (payments to television consultants for services in. connection with taxpayer’s application for license not an ordinary and necessary business expense but a capital item). . “§ 167. Depreciation. “(a) General rule — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— “(1) of property used in the trade or business * * . Although section 167 of the Internal Revenue Code does not specifically refer to intangible assets, the Treasury Regulation, first adopted under the Revenue Act of 1918, has remained substantially unchanged through successive re-enactments of the Code and has the force and effect of law. Commissioner of Internal Revenue v. Indiana Broadcasting Corp., 350 F.2d 580, 581 (7th Cir. 1965), cert. denied 86 S.Ct. 645 (Feb. 1, 1966). See also Helvering v. Winmill, 305 U.S. 79," }, { "docid": "6987422", "title": "", "text": "and necessary business expense under section 162 (a), but treated as a capital item); World Publishing Co. v. Commissioner, 35 T.C. 7 (1960), rev’d on other grounds, 299 F.2d 614 (8th Cir. 1962) (payments to television consultants for services in. connection with taxpayer’s application for license not an ordinary and necessary business expense but a capital item). . “§ 167. Depreciation. “(a) General rule — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)— “(1) of property used in the trade or business * * . Although section 167 of the Internal Revenue Code does not specifically refer to intangible assets, the Treasury Regulation, first adopted under the Revenue Act of 1918, has remained substantially unchanged through successive re-enactments of the Code and has the force and effect of law. Commissioner of Internal Revenue v. Indiana Broadcasting Corp., 350 F.2d 580, 581 (7th Cir. 1965), cert. denied 86 S.Ct. 645 (Feb. 1, 1966). See also Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 83 L.Ed. 52 (1938). . This appears to be the theory set forth in taxpayer’s petition for certiorari. When the case was before us, the taxpayer computed the life of the asset as being 58 months, i.e., 3 years plus 22 months, the extra 22 months being the duration of the construction permit issued by the FCO before the grant of the regular license. As we conclude, for reasons hereafter appearing in the text,that the asset has a life of indefinite duration, the apparent disparity is immaterial. . Certainly, neither Richmond Television Corporation nor any other FCC licensee would seriously entertain an offer for the purchase of its business calculated on the assumption that business life was limited to the remainder of the current three-year licensing period. If a would-be purchaser were to submit an offer in the hope, whether naive or wily, of obtaining such a bargain, he would soon be scornfully reminded by the licensee that in the entire experience of the industry the term of the license is" } ]

[ { "docid": "2563838", "title": "", "text": "it is reversible error for a district court to refuse to give a general instruction on self-defense when the evidence reveals a basis for the defense. Government of the Virgin Islands v. Salem, 456 F.2d 674 (3d Cir.1972). We have not ruled upon whether the court must include a separate instruction on the burden of proving self-defense. In United States v. Corrigan, 548 F.2d 879 (10th Cir.1977), the Court of Appeals for the Tenth Circuit held that when self-defense has been placed in issue, the jury must be instructed separately regarding the burden of proof on that issue. However, we are not faced with the situation presented in Corrigan, because in that case the defendant had properly objected to the court’s instruction. Here, Smith’s counsel did not object at trial to the jury instructions on the grounds now raised. Consequently, a new trial can be granted only if the failure of the district court to provide a specific instruction constitutes “plain error.” Fed.R.Crim.P. 52(b). Rule 52(b) provides that “plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Plain errors are those that “undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985). The Supreme Court has cautioned that the plain error exception is to be used “sparingly.” United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982). We have not established a rigid test for discerning plain error: Instead, we ... look on a case-by-case basis to such factors as the obviousness of the error, the significance of the interest protected by the rule that was violated, the seriousness of the error in the particular case, and the reputation of judicial proceedings if the error stands un-correeted — all with an eye toward avoiding manifest injustice. United States v. Thame, 846 F.2d 200, 205 (3d Cir.1988). Another important factor is whether the error had “an unfair prejudicial impact" } ]

[ { "docid": "7880288", "title": "", "text": "to whether it was permissible. The government is correct that the offense level used in calculating the defendant’s sentence, 28, was the same as the offense level for the conviction under 21 U.S.C. § 841(a)(1) alone. But because we cannot be sure that the sentencing judge would not have granted the two-level downward departure if the defendant had been convicted on this charge alone (and thus employed an offense level of 26 in calculating her sentence), we cannot be certain that the schoolyard provision did not affect her sentence. While one of the sentencing judge’s cited grounds for departure related solely, to the schoolyard count, the others did not. .Rodriguez objects to the following portion of the jury instruction: The Government doesn’t have to prove that the possession occurred during school hours or that the school was in session, or that the defendant intended to distribute the narcotics to school children. It is sufficient for the Government to prove that the defendant knowingly possessed with intent to distribute a controlled substance and that this offense was committed, was actually committed within 1,000 feet of a school. App. at 315a-316a; Brief of Appellant at 9. . Before charging the jury, the district court-suggested that the two remaining counts be combined into one on the basis that Count Two — possession with intent to distribute — is a “ 'lesser-included offense’ in Count Three\" — possession with intent to distribute near a school: \"[EJither the Government has established that she possessed it within a thousand feet of the school, or the Government hasn’t established possession at all.” App. at 280a-281a. Counsel for Rodriguez agreed: \"I agree ... There is no way that any Jury can bring back 'Guilty/Not Guilty’ on the two Counts.” App. at 281a. Moreover, after the jury returned its verdict, counsel for Rodriguez stated, \"I had no objections to the Charge.” App. at 336a. . Fed.R.Crim.P. 52(b) provides that \"plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” \"Plain errors are those that ‘undermine the fundamental fairness" }, { "docid": "23191133", "title": "", "text": "improper and requires reversal: In sum, you’ve heard how Hoffman[n-]LaRoche was testing their product. They were doing animal studies and they were doing clinical studies. I submit that these defendants were testing their product too, on the babies in Spokane, Tennessee, in Cincinnati, and other places. Although the final sentence of this statement was improper, defense counsel failed to object. Our review is therefore limited to determining whether the prosecutor's remark amounted to plain error. See Fed.R.Crim.P. 52(b); United States v. Skarda, 845 F.2d 1508, 1511 (8th Cir.1988). Under this standard, reversal is warranted only if the remark was “such as to undermine the fundamental fairness of the trial and con tribute to a miscarriage of justice.” United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985). As noted previously, the district court emphasized to the jury that the defendants were not on trial for injuring infants. The court also instructed the jury that the attorneys’ closing arguments were not evidence. Moreover, the evidence admitted against Carter was substantial and persuasive. We are satisfied that, viewed in the context of the entire trial, the prosecutor’s improper remark did not contribute to a miscarriage of justice. H. Supplemental Charge, Jury Poll, and Unanimity of Verdict The indictment alleged that E-Ferol had been misbranded in five different ways. The first was that the labeling for E-Ferol was “false and misleading” because it failed to reveal one or more of the “material facts” identified in the indictment. The jury instructions characterized these five grounds as options to be considered individually. The jury was told that, as to each defendant and each misbranding count, it had to specify at least one of the five options in order to return a guilty verdict. However, the final misbranding instructions described the first option as simply “false and misleading in any particular,” and did not require the jury to indicate which of the material facts listed in the indictment had not been revealed. During discussions with counsel while the jury deliberated, the district court recognized that a misbranding verdict specifying option" }, { "docid": "18122807", "title": "", "text": "unless a trustee is appointed, the debtor is a \"debtor in possession” and has the same powers and duties as a trustee. See 11 U.S.C. § 1107(a). . Federal Rule of Criminal Procedure 52(b) provides that “plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Fed.R.Crim.P. 52(b). Accordingly, there must be an \"error” which is \"plain” and that \"affects substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). \"Affecting substantial rights” means that the error must have been prejudicial to the defendant and have affected the outcome of the district court proceeding. Id. at 734, 113 S.Ct. 1770. The decision to correct the forfeited error is “within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' ” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). . The exception is Count 7, which charged Brennan with failing to disclose to the Bankruptcy Court his receipt of $525,594 from the Mirage hotel casino in September 1995. All of the other convicted counts involved the bearer bonds. . The exact charge was as follows: All right. Now, in regard to that, as I told you in my original instructions, this case is an important one to the Government. It is equally important to the defendant. It is desirable if a verdict can be reached but your verdict must reflect the consent, conscientious judgment of each juror. Under no circumstances must any juror yield his conscientious judgment. You have deliberated for only five days in a case that previously took 19 days to try. It is normal for jurors to have differences. This is quite common. Frequently, jurors, after extended discussions may find that a point of view, which originally represented a fair and considered judgment, might well yield on the basis of argument and upon the facts in the evidence. However, and I" }, { "docid": "7988295", "title": "", "text": "explained the purpose for the sectional analysis: As chairman of the Judiciary Committee, I, along with Senator Thurmond ... took the lead in drafting the criminal law provisions that are contained in the drug bill. I have drafted a section-by-section analysis of those provisions, and believe it will be helpful to those who wish to know the intent of the drafters of this legislation. 134 Cong.Rec. S17360 (daily ed. November 10, 1988) (statement of Senator Biden). The analysis for the amendment to the schoolyard statute states: Section 6457. Possession With Intent to Distribute Within 1,000 Feet of a Schoolyard— Section 845a of title 21 currently makes it a crime to distribute or to manufacture controlled substances within 1,000 feet of a school. This section adds “possession with intent to distribute” to [the] list of offenses covered by this statute so that the enhanced penalties would apply to someone apprehended near a school with a quantity of drugs sufficient to indicate an intention to distribute. Id. at S17865. See also 134 Cong.Rec. S14067, S14071 (daily ed. October 3, 1988) (statement of Senator Nunn) (same). The Judiciary Committee analysis makes clear that Congress’ focus was on the quantity of drugs a defendant possesses within 1,000 feet of a school, not the location of the subsequent distribution. Otherwise, the above-quoted statement in the legislative history (sectional analysis) that enhanced penalties apply to “someone apprehended near a school with a quantity of drugs sufficient to indicate an intention to distribute” would be followed by: “within 1,000 feet of the school”, or “to schoolchildren”, or “in the vicinity of the school”. Instead, Congress chose to recognize the obvious dangers inherent in possessing large quantities of drugs in the vicinity of a school, whether or not schoolchildren, or someone else within the 1,000-foot zone, are the intended objects of the distribution. Previous decisions construing the schoolyard statute have upheld it against challenges that the particular conduct subjected to enhanced penalties was not of the type Congress attempted to remedy in enacting the statute. In United States v. Falu, 776 F.2d 46 (2d Cir.1985), for example, the" }, { "docid": "18884469", "title": "", "text": "COURT: Please go back to the jury room. R.T. at 179-80 (emphasis added). After the juror left the courtroom, the judge noted that “[s]he does appear that she’s in distress. How serious, I don’t know.” He then brought the whole jury into the courtroom to determine the status of the deliberations. The foreperson stated that they had reached a verdict on some counts. When asked if further deliberations would be fruitful, the foreperson said “I’m concerned about the one juror who is ill and whether she can continue.” The judge had the jury retire for further deliberations. After the jury left the courtroom, the judge stated: What I intend to do is wait a few minutes. We’ll see what happens. If she sends out another note, then I’m going to have to do something. But the next time I think under the rules I’ll ask them the same thing and then accept whatever verdict they have. Then we’ll go from there. Id. at 182. The jury returned a guilty verdict on all charges at 3:45 p.m. that afternoon. Ross was sentenced to concurrent three year sentences on each count. II. DISCUSSION A. Defendant’s Right to an Impartial Jury Because defense counsel made no objection and moved neither for the juror’s removal nor for a mistrial, we review the district court’s treatment of the juror under the plain error standard. Fed.R. Crim.P. 52(b). The plain error rule “authorizes the Courts of Appeals to correct only ‘particularly egregious errors,’ those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (citations omitted). Reversal is warranted only in exceptional circumstances “necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.” United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). This court generally defers to the district court in the management of juries. See, e.g., United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir.) (“substantial weight” is accorded to the trial judge’s conclusion regarding" }, { "docid": "7880290", "title": "", "text": "of the trial and contribute to a miscarriage of justice.’ ” Government of the Virgin Islands v. Smith, 949 F.2d 677, 681 (3d Cir.1991), quoting United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). . Senator Biden explained his view of the significance of this analysis as follows: As chairman of the Judiciary Committee, I, along with Senator Thurmond, the ranking minority member, took the lead in drafting the criminal law provisions that are contained in the drug bill. I have drafted a section-by-section analysis of those provisions, and believe it will be helpful to those who wish to know the intent of the drafters of this legislation. . The fact that other courts have construed this statute differently does not alter our conclusion. If we were to hold that the conflicting constructions of other courts require us to find a statute ambiguous, triggering the rule of lenity, we would, in effect, be holding that we are bound by those other courts’ constructions; we do not, indeed, could not, so hold. See Moskal v. United States,-U.S.-, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990). .If a trial court is actually presented with one of these extreme cases, we believe the Sentencing Guidelines would generally permit the court to eliminate any unwarranted increase in the sentence that would otherwise be imposed. In most cases involving convictions under the schoolyard statute for possession with intent to distribute, the only effect of the schoolyard statute is a one or two-point increase in the offense level under U.S.S.G. § 2D 1.2(a). If a case technically qualifies for such an increase but it is clear that the defendant's conduct did not create any increased risk for those whom the schoolyard statute was intended to protect, we believe that a one- or two-point downward departure to eliminate this increase would be permissible. . “All relevant evidence is admissible, except as otherwise provided by the Constitution of the . United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority." }, { "docid": "14447468", "title": "", "text": "its use of the 404(b) testimony, we do not find the district court abused its discretion. We turn finally to the appellants’ arguments that the court’s instructions were improper and confusing. During Dennis’s testimony, the court twice instructed that the “other crimes” evidence was being admitted so the jury could evaluate Dennis’s credibility. At the end of trial, in its charge to the jury, the court instructed that the evidence had been admitted so jurors could determine whether the defendants had the requisite intent. The court directed the jury to use the other crimes testimony only for that limited purpose. Appellants’ claim of instructional error comes late, as they did not object to any of the three sets of instructions. Under the Rules of Criminal Procedure, “[n]o party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict.” Fed.R.Crim.P. 30. Thus, we review the alleged error under the plain error standard of Rule 52(b), which states that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Fed.R.Crim.P. 52(b). To be noticed, therefore, the error must be “‘clear’ or, equivalently, ‘obvious’ ” and “must have affected the outcome of the District Court proceedings.” United States v. Olano, - U.S. -,-, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Furthermore, this court has a duty “to correct a plain forfeited error affecting substantial rights” only “‘in those circumstances in which a miscarriage of justice would otherwise result,’ ” Id. — U.S. at-, 118 S.Ct. at 1779 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)), or if the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). We cannot say, under this very deferential standard, that the district court plainly erred. Although the primary purpose of the 404(b) evidence may have been to prove" }, { "docid": "7988294", "title": "", "text": "also increase when crack cocaine is found within 1,000 feet of a school. Double penalties are imposed when the crack houses are within 1,000 feet of a school. The bills also expand existing law so that increased penalties apply for distributing or manufacturing any drugs within 1,000 feet of a school. 132 Cong.Rec. S10426 (daily ed. August 6, 1986) (statement of Senator Chiles). Senator Chiles’ comments leave no doubt that the bills’ proponents were concerned about the mere presence of large quantities of drugs around schools. His remarks also indicate an effort on the part of Congress to, among other things, cure the evil of drug dealers’ setting up shop in the zone surrounding schools. This desire to rid the area around schools of persons possessing large quantities of drugs, as discussed infra, formed the impetus to the 1988 amendments to the schoolyard statute. A section-by-section analysis of the amendment and other legislation was submitted to the Senate by the Judiciary Committee. It supports — indeed, mandates — our interpretation of the statute. Senator Biden explained the purpose for the sectional analysis: As chairman of the Judiciary Committee, I, along with Senator Thurmond ... took the lead in drafting the criminal law provisions that are contained in the drug bill. I have drafted a section-by-section analysis of those provisions, and believe it will be helpful to those who wish to know the intent of the drafters of this legislation. 134 Cong.Rec. S17360 (daily ed. November 10, 1988) (statement of Senator Biden). The analysis for the amendment to the schoolyard statute states: Section 6457. Possession With Intent to Distribute Within 1,000 Feet of a Schoolyard— Section 845a of title 21 currently makes it a crime to distribute or to manufacture controlled substances within 1,000 feet of a school. This section adds “possession with intent to distribute” to [the] list of offenses covered by this statute so that the enhanced penalties would apply to someone apprehended near a school with a quantity of drugs sufficient to indicate an intention to distribute. Id. at S17865. See also 134 Cong.Rec. S14067, S14071 (daily ed." }, { "docid": "2145413", "title": "", "text": "bank account there. In the government’s rebuttal at closing argument, the prosecutor suggested that ill-gotten gains from the SBA scheme had ended up in the Caymans. G. The jury found Perholtz, Jackson, and Fletcher guilty on all counts but acquitted Root. On count II, the jury found racketeering acts two through thirty-seven as charged, but exonerated Perholtz and Jackson of act number one, bribery in the FLSA procurement. The jury also declared forfeit most of the items named in the indictment, including all of Perholtz’s stock in ATL and all bank accounts in ATL’s name. Perholtz, Jackson, and Fletcher received prison terms of ten, seven, and four years, respectively. II. Discussion A. Plain Error Rule Many of appellants’ claims of error were raised for the first time on appeal. Ordinarily, a party waives his right to appeal a trial court's ruling if he fails to object below. Federal Rule of Criminal Procedure 52(b), however, provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” In a recent discussion of the rule, the Supreme Court stated: The plain-error doctrine ... tempers the blow of a rigid application of the contemporaneous-objection requirement. The Rule [52(b) ] authorizes the Courts of Appeals to correct only “particularly egregious errors,” those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings.” In other words, the plain-error exception to the contemporaneous objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” Any unwarranted extension of this exacting definition of plain error would skew the Rule’s “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. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (footnote and citations omitted). Applying this restrictive standard of review to the issues discussed below, we conclude that appellants have not established plain error. B. The Indictment Properly Charged an" }, { "docid": "472437", "title": "", "text": "to “consider any personal opinions of the attorneys, but only their logical arguments based on the evidence.” If a more specific curative instruction were thought necessary, counsel should have requested one before the jury retired. Fed. R.Crim.P. 30. IV Thame also makes a number of arguments for the first time on appeal. Since these points were not properly raised in the district court, Thame can secure relief only if the alleged errors are within the plain error doctrine of Fed.R.Crim.P. 52(b). Rule 52(b) provides: Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Rule 52(b) is not to be used freely. Instead, it authorizes the Courts of Appeals to correct only particularly egregious errors, those errors that seriously affect the fairness, integrity or public reputation of judicial proceedings. In other words, the plain-error exception to the contemporaneous-objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result. United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (internal quotations and citations omitted). In Young, the Court of Appeals relied on the plain error doctrine to reverse a conviction, but did not explicitly consider the prejudicial impact of the error in light of the facts of the particular case. 736 F.2d 565, 570 (10th Cir.1984) (per curiam). The Supreme Court reversed, criticizing the Court of Appeals for not viewing the error in context. 470 U.S. at 14-20, 105 S.Ct. at 1045-48. In particular, the Court stated: A per se approach to plain error is flawed. An error, of course, must be more than obvious or readily apparent in order to trigger appellate review under Federal Rule of Criminal Procedure 52(b). [T]he plain error doctrine ... requires] an appellate court to find that the claimed error not only seriously affected “substantial rights,” but that it had an unfair prejudicial impact on the jury’s deliberations. 470 U.S. at 16 n. 14, 105 S.Ct. at 1047 n. 14. Justice Blackmun has recently noted that Young, by isolating" }, { "docid": "7321979", "title": "", "text": "stage of the analysis we must determine de novo whether the evidence before the jury that the defendant had actual knowledge of his criminal activity was so compelling the jury would necessarily find Mr. Lopez guilty beyond a reasonable doubt, even without the deliberate ignorance instruction. After reviewing the record, we do not believe the evidence is so one-sided. We conclude a properly instructed jury could have determined the evidence presented at trial was insufficient to find Mr. Lopez had actual knowledge of his possession of cocaine for distribution when viewed from his perspective as a member of the Spanish-speaking community of Colombian immigrants and taking into consideration his difficulty with the English language. Thus, we have no way of knowing whether the improper instruction was the key to the jury’s decision that Mr. Lopez was guilty, or whether the jury concluded the prosecution’s version of events was indeed the more credible. Under this circumstance, tendering the improper jury instruction cannot be brushed aside as harmless error. The judgment of the United States District Court for the District of Utah is REVERSED, and the case is REMANDED for a new trial. . Because Mr. Lopez did not raise these issues in the district court, we review them on appeal for plain error under Fed.R.Crim.P. 52(b) (\"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”) See United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (Under the plain error standard, reversal is required only to correct “particularly egregious errors, those errors that seriously affect the fairness, integrity or public reputation of judicial proceedings.”); United States v. Smith, 919 F.2d 123, 124 (10th Cir.1990); United States v. Mitchell, 783 F.2d 971, 977 (10th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 208, 93 L.Ed.2d 138 (1986). . The content of the deliberate ignorance instruction is modeled after section 2.02(7) of the Model Penal Code. “Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is" }, { "docid": "22046545", "title": "", "text": "rights although they were not brought to the attention of the military judge.” This rule was likewise taken from Fed.R.Evid. 103(d), with the same change of terminology, substituting “materially prejudices” for “affecting” substantial rights. Drafters’ Analysis of Mil. R.Evid. 103(d), supra. The Notes of Advisory Committee' on 1972 Proposed Rules indicate that Fed.R.Evid. 103(d) is taken from Fed.R.Crim.P. 52. Fed. R.Crim.P. 52(a) provides: “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” Fed.R.Crim.P. 52(b) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” There is no military counterpart to Fed.R.Crim.P. 52 in the Manual for Courts-Martial. Article 66(c), UCMJ, 10 USC § 866(c) (1994), provides that a Court of Criminal Appeals “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Courts of Criminal Appeals enjoy much broader appellate authority than civilian intermediate courts or our Court, which is empowered by Article 67, UCMJ, 10 USC § 867 (1994), to “take action only with respect to matters of law.” On the other hand, Article 66(c) also limits appellate authority, because it provides that Courts of Criminal Appeals “may only affirm” that which they independently find “correct in law and fact” and that which they “determinen, on the basis of the entire record, should be approved.” In United States v. Fisher, 21 MJ 327 (1986), this Court considered whether there was “plain error,” as the term is used in RCM 1005(f), pertaining to a military judge’s instructions. This Court held that plain error “must not only be both obvious and substantial, it must also have ‘had an unfair prejudicial impact on the jury’s deliberations.’ ” Id. at 328, citing United States v. Young, 470 U.S. 1, 16-17 n. 14, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). The Supreme Court’s decision in Young, on which Fisher relies, was made in the context of discretionary review." }, { "docid": "13521389", "title": "", "text": "error. United States v. Whitetail, 956 F.2d 857, 861 (8th Cir.1992). Under this standard, reversal is warranted only if “ ‘admission of the challenged testimony undermine[d] the fundamental fairness of the trial and contribute[] to a miscarriage of justice.’” Id. (quoting United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)) (alterations in the original). Washington contends that admitting the abortion evidence constitutes plain error because abortion is a highly charged, emotional issue which has a likelihood of inciting the jury. We disagree. While abortion is a controversial issue, and admitting the abortion evidence may have slightly prejudiced the defendant, we cannot find the error substantial enough to undermine the fundamental fairness of the' trial as a whole. The abortion testimony represented only a small part of the entire case. The government presented extensive evidence supporting Washington’s considerable involvement in the conspiracy. Thus, admission of the abortion testimony does not rise to the level of plain error. 3. Miscellaneous Washington also challenges the sufficiency of the evidence for his conviction on Count IV of the conspiracy. This count charged Washington with the offense of aiding and abetting possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a). The facts forming the basis for Count IV involve the December 27,1992, stop of Washington and two other men. Washington submits that there was insufficient evidence to find that he had any knowledge of or connection with the cocaine found in the hotel room. In reviewing challenges to sufficiency of the evidence, we view the evidence in a light most favorable to the government and determine whether a rational jury could have found the defendant guilty. United States v. Johnson, 18 F.3d 641, 645 (8th Cir.1994). The government receives “the benefit of all reasonable inferences which may logically be drawn” from the evidence. Id. (citation omitted). After a careful review of the record, we find that there is sufficient evidence to convict Washington of the offense charged. This circuit has previously held that constructive possession of drugs is “sufficient to satisfy the element" }, { "docid": "7880289", "title": "", "text": "was committed, was actually committed within 1,000 feet of a school. App. at 315a-316a; Brief of Appellant at 9. . Before charging the jury, the district court-suggested that the two remaining counts be combined into one on the basis that Count Two — possession with intent to distribute — is a “ 'lesser-included offense’ in Count Three\" — possession with intent to distribute near a school: \"[EJither the Government has established that she possessed it within a thousand feet of the school, or the Government hasn’t established possession at all.” App. at 280a-281a. Counsel for Rodriguez agreed: \"I agree ... There is no way that any Jury can bring back 'Guilty/Not Guilty’ on the two Counts.” App. at 281a. Moreover, after the jury returned its verdict, counsel for Rodriguez stated, \"I had no objections to the Charge.” App. at 336a. . Fed.R.Crim.P. 52(b) provides that \"plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” \"Plain errors are those that ‘undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.’ ” Government of the Virgin Islands v. Smith, 949 F.2d 677, 681 (3d Cir.1991), quoting United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). . Senator Biden explained his view of the significance of this analysis as follows: As chairman of the Judiciary Committee, I, along with Senator Thurmond, the ranking minority member, took the lead in drafting the criminal law provisions that are contained in the drug bill. I have drafted a section-by-section analysis of those provisions, and believe it will be helpful to those who wish to know the intent of the drafters of this legislation. . The fact that other courts have construed this statute differently does not alter our conclusion. If we were to hold that the conflicting constructions of other courts require us to find a statute ambiguous, triggering the rule of lenity, we would, in effect, be holding that we are bound by those other courts’ constructions; we do not, indeed, could not," }, { "docid": "8093021", "title": "", "text": "and the other witnesses for the government. In fact, Wills conducted an appropriate direct examination of Hanley when he took the stand in his own defense, clearly putting Hanley’s claim before the jury that he was not involved in any of the drug transactions. III. In his next issue presented for review, Hanley claims that he was denied due process of law when the trial court inadvertently instructed the jury as follows: On the other hand, if a reasonable doubt exists in your mind concerning the guilt of the defendant as to one or more of the counts, then it will be your duty to find the defendant guilty as to such count or counts. J.A. 457. Unfortunately, neither counsel for the defendant nor the government, nor the district court, noticed that the word “not” was left out of the phrase “it will be your duty to find the defendant not guilty as to such count or counts.” Otherwise, it would have been easily corrected and the situation remedied. Since no objection was made, we review for plain error.. Rule 52(b), Federal Rules of Criminal Procedure, provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” [Fjederal courts have consistently interpreted the plain-error doctrine as requiring an appellate court to find that the claimed error not only seriously affected “substantial rights,” but that it had an unfair prejudicial impact on the jury’s deliberations. Only then would the court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice. United States v. Young, 470 U.S. 1, 17 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985). We have no doubt that the error did not have an unfair prejudicial impact on the jury’s deliberations, or in any way undermine the fairness of the trial or contribute to a miscarriage of justice. When viewing the instructions as a whole, the jury was properly instructed several times regarding the burden placed upon the government to prove the defendant" }, { "docid": "8796541", "title": "", "text": "in the decision of this Court, and no judge who concurred in the decision having asked for rehearing, and none of the members of the panel having voted for rehearing, the petition for rehearing is denied. . Pakistan is a non-signatory nation of the Nuclear Non-Proliferation Treaty and, according to a letter sent to Carpenter by the Department of Commerce, would probably be denied an application for an export license for maraging steel by the Department of Commerce. App. at 45a, 695a-96a. . In Tomley's opinion, no facilities existed in Pakistan that could remelt maraging steel. App. at 267a. . Inam Ul-Haq remains a fugitive. . We believe the proper analysis is under the plain error standard. In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the Supreme Court held that the prosecutor’s statements did not undermine the fundamental fairness of the trial and contribute to a miscarriage of justice and thus were not plain error under Fed.R.Crim.P. 52(b). The Court noted: A per se approach to plain-error review is flawed. An error, of course, must be more than obvious or readily apparent in order to trigger appellate review under Federal Rule of Criminal Procedure 52(b). Following decisions such as United States v. Frady, [456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ], United States v. Socony-Vacuum Oil Co., [310 U.S. 150, 60 S.Ct. 811; 84 L.Ed. 1129 (1950)], and United States v. Atkinson, [297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936)], federal courts have consistently interpreted plain-error doctrine as requiring an appellate court to find that the claimed error not only seriously affected \"substantial rights,” but that it had an unfair prejudicial impact on the jury’s deliberations. Only then would the court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice. To do otherwise could well lead to having appellate courts indulge in the pointless exercise of reviewing \"harmless plain errors” — a practice that is contrary to the draftsmen’s intention behind Rule 52(b), and one that courts" }, { "docid": "21443440", "title": "", "text": "necessarily indicate that Ob-erle believed he was guilty of a crime. Given the countervailing concerns about the supervisory process, however, we do not believe that this factor is enough to find that the district court abused its discretion in refusing to admit the evidence. Similarly, Oberle’s desire to have the probation officer testify that he never showed signs of drug use and that he had been employed were of marginal relevance. Those reasons are insufficient to justify calling the probation officer, especially since the jury was informed about Oberle’s employment through other testimony. C. Prosecutorial Misconduct Oberle argues that the prosecutor committed misconduct when she repeatedly argued that Oberle was a professional bank robber. We recently stated: We use a two-step process when evaluating claims of prosecutorial misconduct. First, we examine whether the conduct was, in fact, improper. If we answer that question in the affirmative, we must then determine whether it warrants reversal. United States v. Ivy, 83 F.3d 1266,1288 (10th Cir.), cert. denied, — U.S.-, 117 S.Ct. 253, 136 L.Ed.2d 180 (1996) (internal quotation marks and citations omitted). Defense counsel objected to only one of the challenged comments, one in which the prosecutor stated that Oberle tried to get Jensen a “Fifth Amendment plea arrangement, showing some wherewithal, some knowledge of the criminal system, I would say.” This comment is reviewed de novo. See Ivy, 83 F.3d at 1288. Because defense counsel did not object to the remaining comments, we review them for plain error. See United States v. Sands, 968 F.2d 1058, 1063 (10th Cir.1992). Under a plain error analysis, “reversal is appropriate only if, after reviewing the entire record, we conclude that the error is obvious and one that would undermine the fairness of the trial and result in a miscarriage of justice.” Id. (citing Fed.R.Crim.P. 52(b) and United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985)). “When evaluating allegedly inappropriate remarks of counsel for plain error, we must view the remarks in the context of the entire trial.” Id. at 1063-64 (citing Young, 470 U.S. at 11-12, 105" }, { "docid": "16804638", "title": "", "text": "them has passed. Id. Fed.R. Crim.P. 52(b) tempers this somewhat by providing that “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Errors may be noticed for the first time on direct appeal “if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” Atkinson, 297 U.S. at 160, 56 S.Ct. at 392. This power is reserved for “exceptional circumstances,” id., and it “is to be used sparingly, solely in those circumstances in which a miscarriage of justice would result.” United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 163 n. 14, 71 L.Ed.2d 816 (1982). Even if error did occur, we review plain error claims against a backdrop of the entire record to determine whether the error was sufficient to “undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985). To find reversible plain error, we must be satisfied that the error not only affected substantial rights in a serious way, but also that the “error had an unfair prejudicial impact on the jury’s deliberations.” Id. at 16-17 n. 14, 105 S.Ct. at 1047 n. 14. “Only then would a court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice.” Id. Consequently, plain error is “ ‘both obvious and substantial.’ ” United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir.1991) (quoting United States v. Brown, 555 F.2d 407, 420 (5th Cir.1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1448, 55 L.Ed.2d 494 (1978)). An error of constitutional significance may be “noticed more freely than less serious errors.” See 3A C. Wright, Federal Practice & Procedure § 856 at 336, 342 (1982 & 1990 Supp.); Jefferson, 925 F.2d at 1254. Notwithstanding, many constitutional errors are “not prejudicial per se.” 8B J. Moore, Moore’s Federal Practice ¶ 52.03 (1990). Rather, under Chapman v. California," }, { "docid": "8093022", "title": "", "text": "review for plain error.. Rule 52(b), Federal Rules of Criminal Procedure, provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” [Fjederal courts have consistently interpreted the plain-error doctrine as requiring an appellate court to find that the claimed error not only seriously affected “substantial rights,” but that it had an unfair prejudicial impact on the jury’s deliberations. Only then would the court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice. United States v. Young, 470 U.S. 1, 17 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985). We have no doubt that the error did not have an unfair prejudicial impact on the jury’s deliberations, or in any way undermine the fairness of the trial or contribute to a miscarriage of justice. When viewing the instructions as a whole, the jury was properly instructed several times regarding the burden placed upon the government to prove the defendant guilty beyond a reasonable doubt. ... The presumption of innocence alone is sufficient to acquit a defendant unless you are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and important consideration of all the evidence in the case. In this case, as in every criminal case, the burden of proof is upon the Government to establish, first, the fact that the crime charged was committed; and, second, that the defendant on trial is guilty of the commission of that crime beyond a reasonable doubt. The burden never shifts to the accused, but remains with the Government throughout the trial. The law does not require a defendant to prove his innocence, to produce any evidence, or to call any witnesses. A reasonable doubt means in law just what the words imply. J.A. 441-42. In summary, before you return' a guilty verdict on Count One, you must find [the Government] established beyond a reasonable doubt that the conspiracy actually existed as charged, and that the defendant willfully joined this conspiracy with the specific intent" }, { "docid": "16804637", "title": "", "text": "Guidelines on count ten because the offense occurred after their enactment; based upon a total offense level of fifteen and criminal history category of II, she was sentenced to twenty-one months imprisonment, and to an additional consecutive month for committing an offense (count ten) while on release, 18 U.S.C. § 3147. The sentences on counts one and four ran concurrently with one another and with the sentence on count ten; accordingly, defendant was sentenced to a term of twenty-two months. Defendant was represented by retained counsel at trial. With one exception, appellate counsel has not pursued the points preserved as potential error by trial counsel; rather, appellate counsel pursues, under a plain error theory, claims which were not raised at trial. Usually, an appellate court will not set aside a judgment based upon errors which were not brought to the attention of the trial court. United States v. Atkinson, 297 U.S. 157, 159, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). Fairness and efficiency considerations counsel against noticing such errors when the opportunity to present them has passed. Id. Fed.R. Crim.P. 52(b) tempers this somewhat by providing that “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Errors may be noticed for the first time on direct appeal “if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” Atkinson, 297 U.S. at 160, 56 S.Ct. at 392. This power is reserved for “exceptional circumstances,” id., and it “is to be used sparingly, solely in those circumstances in which a miscarriage of justice would result.” United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 163 n. 14, 71 L.Ed.2d 816 (1982). Even if error did occur, we review plain error claims against a backdrop of the entire record to determine whether the error was sufficient to “undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1" } ]

[ { "docid": "16344065", "title": "", "text": "BLACKMUN, Circuit Judge. This case has its genesis in two complaints filed by the general counsel in 1966 against McGraw-Edison Company (Bersted Manufacturing Division). One complaint was based on charges by Local 257, International Brotherhood of Electrical Workers, AFL-CIO. The other rested on charges by Teamsters Local 833, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. McGraw seeks review of the resulting order of the National Labor Relations Board issued August 19, 1968, and reported as 172 NLRB No. 178. The Board, by cross-application, seeks enforcement of its order. The Board, in agreement with its trial examiner except for minor modifications not significant here, found that McGraw violated § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), by numerous threats to employees for union activity, by threats to close down and move its Moberly, Missouri, plant if an organizational campaign succeeded, by interrogation of employees, and by granting wage increases and hospitalization benefits to discourage union activity. The Board also found that McGraw violated § 8(a) (3) and (1) by laying off 120 employees at its Moberly plant and delaying their recall, and by discharging two employees at its warehouse at Columbia, Missouri. Finally, the Board found that McGraw violated § 8(a) (5) and (1) by unilateral changes in incentive wage rates and by refusing IBEW permission to make time studies in the Moberly plant. The trial examiner had decided some issues in McGraw’s favor. The Board’s order directs McGraw to cease and desist from the unfair labor practices so found; to permit IBEW, upon request and under reasonable terms and conditions, to perform its own time studies on incentive rated jobs; to offer the two Columbia employees reinstatement with full seniority rights; to make those two and the 120 Moberly employees whole for any loss suffered by them; to make available to the Board records necessary for an analysis of backpay due and rights to reinstatement; and to post appropriate notices. Jurisdiction is established under § 10(e) and (f) of the Act, 29 U.S.C. § 160(e) and (f). This" } ]

[ { "docid": "20853234", "title": "", "text": "adjudicatory process will not frustrate the remedial purpose of the Act in this case and therefore conclude the district court abused its discretion in granting injunctive relief. III. Conclusion For the foregoing reasons, we vacate the injunction. . Hankins sought to intervene in the district court, but the court denied his motion. Han-kins did not appeal that denial but did file an amicus brief in this appeal. . Specifically, the Director contends that Southern Bakeries interrogated employees by instructing them to report harassment from the Union, threatened employees by giving speeches about .the possibility of job losses and plant closure, and implicitly promised employees benefits if they voted against the Union. The petition also contends that by unilaterally installing security cameras where the Union meets with employees, and although the cameras were covered during such meetings, the Company created the impression that employees’ union activities were under surveillance. The petition further .alleges that Southern Bakeries did not allow the Union access to the Company's facilities in a manner consistent with past practice. At the administrative level, the Director also asserted that Southern Bakeries violated § 8(a)(3) by placing three union employees under investigation and firing another employee. However, the Director did not raise with the district court or on appeal any arguments regarding the employees under investigation, and she abandoned her argument regarding the fired employee after the ALJ determined that the Company discharged him lawfully. S. Bakeries, 38 F.Supp.3d at 1029 n. 4. . District Courts in this circuit have followed this important initial step in the analysis established in Sharp v. Parents in Cmty. Action, Inc., with a disciplined focus on the element of irreparable harm. See Hubbel v. Patrish LLC, 903 F.Supp.2d 813, 817 (E.D.Mo.2012) (\"Should the Board fail to make this showing, I need not consider the remaining three Data-phase factors.”); Chester ex rel. N.L.R.B. v. Eichorn Motors, Inc., 504 F.Supp.2d 621, 627 (D.Minn.2007) (\"Should the Board fail to make this showing, the Court need not consider the remaining three Dataphase factors.”). . Although the Director alleged Southern Bakeries solicited the 2011 petition, an allegation the" }, { "docid": "9789721", "title": "", "text": "181. Relying on these same factors, the ALJ also concluded that Star-dyne was Johnstown’s successor and was therefore obligated to recognize and bargain with the union that represented Johnstown’s employees. Id. Turning to the substance of the charges in the complaint, the ALJ held that the two companies had violated Section 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5), when management representatives bypassed the union, dealt directly with the Johnstown employees assigned to the laser project, and induced them to enter into separate employment agreements. The ALJ further held that the companies had violated Section 8(a)(1) and (5) by unilaterally altering these employees’ working conditions. The ALJ therefore recommended that the companies be ordered to recognize and bargain with the union, to abide by the terms of the collective bargaining agreement, and to reimburse any employees who had been injured as a result of any failure to abide by this agreement. Id. at 183. Both Johnstown and Stardyne filed exceptions to the ALJ’s decision with the Board, but the Board adopted the ALJ’s recommended order. The Board concluded that it was unnecessary to review the ALJ’s determination that Johnstown and Stardyne were a single employer, because the ALJ was correct in finding that “Stardyne is a successor to Johnstown [ ] as well as an alter ego.” Id. at 171. The Board so held even though it agreed with the ALJ that “there [was] not sufficient evidence to establish that Stardyne was created so that Johnstown could ‘evade responsibilities under the Act.’ ” Id. (citation omitted). Johnstown and Stardyne independently petitioned this court for review, and the Board filed a cross-application for enforcement of its order. In their petitions for review, the companies each argue that they cannot be alter egos as a matter of law because the Board expressly found that Stardyne was not created to evade responsibilities under the National Labor Relations Act. They also argue that the Board’s finding that they were alter egos is not supported by substantial evidence. Last, Johnstown and Stardyne argue that under established Board precedent, the ALJ’s undisturbed" }, { "docid": "14442619", "title": "", "text": "would be futile; interrogating employees, impliedly threatening employees with discharge; threatening employees with reprisal, including loss of jobs, discharge and layoff; and granting wage increases to employees for the purpose of discouraging union support. Also pursuant to these admissions, the ALJ found that DiMuc-ci and Wheeling had violated sections 8(a)(3) and 8(a)(1) of the Act by failing to recall employees Sumrall and Cederstrom from layoff and by discharging employees Beery and Stone. Based on the evidence presented at the hearing with respect to the allegations in 13-CA-29659, the ALJ found that since at least April 30, 1990, DiMucci, Wheeling and Semi engaged in excavation work as joint employers of Semi’s employees. The ALJ further found that joint employers DiMucci, Wheeling and’Semi failed to recall the four employees as required under the settlement agreement because those employees supported the Union. Accordingly, the ALJ found that the failure to recall the employees violated sections 8(a)(3) and 8(a)(1) of the Act. This decision was issued on April 9,1992. DiMuc-ci, Wheeling and Semi filed exceptions to the ALJ’s decision with the NLRB. On May 28, 1993, the NLRB affirmed the ALJ’s rulings, findings and conclusions in their entirety and adopted the ALJ’s recommended order. This appeal followed. II Petitioners’ first contention on appeal is that the Board erred in finding that DiMucci, Wheeling and Semi were joint employers of Semi’s employees. Petitioners maintain that the ALJ applied the wrong standard in determining whether a joint employer relationship existed — that the ALJ erred by focusing on general control and control over day-today activities instead of commonality of labor relations. Moreover, petitioners argue that the ALJ should not have credited the testimony of Jeffrey Wilt. Thus, petitioners allege that the Board’s adoption of the ALJ’s findings and recommended order was erroneous. DiMucci, Wheeling and Semi could be considered joint employers if DiMucci and Wheeling exerted significant control over Semi’s employees. N.L.R.B. v. Western Temporary Serv., Inc., 821 F.2d 1258, 1266 (7th Cir.1987). This issue is essentially a factual question. Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 898, 11 L.Ed.2d 849 (1964);" }, { "docid": "6400204", "title": "", "text": "The Company installed two additional conveyor belts in July 1994, and two more in April 1995. II. Procedural Background Pursuant to charges filed by the Union, the Board issued a complaint and notice of hearing on March 24, 1995. The complaint alleged that McGaw violated Section 8(a)(1) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 158(a)(1), by soliciting employees to spy on and report other employees’ union activities, expressing to employees the futility of engaging in union activities by telling them it was easy to instill fear in them so that they would vote against the Union, interrogating an employee concerning the Union’s activities at the Company’s plant, threatening employees with plant closure and loss of wages if they supported the Union, threatening to “blackball” employees regarding future employment opportunities if they supported the Union, and prohibiting employees from talking about the Union at the plant. The complaint further alleged that McGaw violated Section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), by changing its seniority policy from classification to plantwide seniority and by laying off nine LPCs on June 30 because they joined and assisted the Union, and/or to discourage employees from engaging in Union activities. Named as dis-eriminatees in the complaint were LPCs Jose Luis Pacheco, Francisco Jusino, Raquel Gonzalez, Scipio Vega, Lourdes Irizarry, Maria Belen, Charlie Silva, Vigdalia Rodriguez, and Nilsa Nazario. The Company denied the allegations. After a full hearing, the administrative law judge (“the ALJ”) sustained each of the Union’s allegations, finding as a matter of law that McGaw had violated Sections 8(a)(1) and (3) of the Act. Following these findings was a detailed remedy and recommended order. McGaw timely excepted, and a three member panel of the Board affirmed the ALJ’s rulings, findings, and conclusions, and adopted his order with slight modification. The Board ordered McGaw to cease and desist, and to reinstate and make whole those unlawfully laid off. We have jurisdiction over MeGaw’s appeal pursuant to Sections 10(e) and (f) of the Act, 29 U.S.C. §§ 160(e) and (f). III. Discussion A. Standard of Review “We will enforce a" }, { "docid": "15268431", "title": "", "text": "infra, a three-member panel of the National Labor Relations Board (“NLRB” or “Board”), with one member dissenting, affirmed the rulings, findings and conclusions of the ALJ and adopted the ALJ’s Recommended Order. ALJ at 982-83. Fournelle and Bethlehem have petitioned for review of the order of the Board, and the NLRB has cross-petitioned for enforcement of that order. Two issues are presented on this appeal. First, we must decide whether Fournelle was lawfully subject to any discipline. Fournelle does not dispute the finding of the Board that he traveled to and participated in a strike meeting after he left work, at which meeting he voted and made statements supporting the strikers’ cause. Nor does he deny that the other employees engaged in an unprotected strike. Instead he argues that, because he had left work on the day in question, for reasons unconnected with the strike, and because a company work rule prevented his return to work on the day of the strike, he was not properly subject to discipline under a contractual term that forbade employees to encourage, sanction, or take part in strikes. We reject Fournelle’s arguments, concluding that the cited collective bargaining agreement effectively waived any rights that Fournelle might otherwise have had to escape discipline for his actions at the union hall. Second, we must decide whether to enforce the decision of the Board that Bethlehem violated sections 8(a)(1) and (3) of the NLRA by punishing Fournelle, a union official, more harshly than other strike participants. We deny enforcement of the Board’s order and hold that the Board should have given effect to á clear arbitral decision that interpreted the contract as allowing the selectively greater punishment of union officials who engage in unauthorized strikes. I. BACKGROUND A. The Strike and its Aftermath Although the parties disagree about the legal significance of the underlying facts, the facts themselves are not disputed. The findings of the ALJ, affirmed by the Board, may be briefly summarized. On the morning of July 28, 1978, approximately 162 employees in the welding department at the shipyard of Bethlehem at Sparrows Point, Maryland," }, { "docid": "2935207", "title": "", "text": "next morning, Santana reported for work at the usual time and volunteered to furnish González with proof of the emergency room visit. González declined the offer, stating that there was “no problem.” That statement proved to be overly sanguine: the next day, González handed Santana a reproving memorandum written by the Company’s controller, José Rodriguez, in which Rodriguez asserted that Santana had promised to arrive at work late on October 23 but had never appeared. Santana immediately protested this mischarac-terization. Rodriguez’s memorandum laid the groundwork for what transpired next. On October 26, he summoned Santana and handed her a letter of dismissal. The letter stated only that the Company was terminating her employment “for not having completed satisfactorily [her] probationary period.” Despite Santana’s impor-tunings, no one would elaborate on this cryptic statement. In due season, the Union lodged unfair labor practice charges against the Company. These charges, which were prosecuted by the Board’s regional counsel, involved both the Company’s overall conduct vis-a-vis the Union’s organizational effort and its treatment of Santana. The charges were heard by an administrative law judge (ALJ). The ALJ found that the Company had transgressed section 8(a)(1) of the Act by improperly interrogating employees, threatening them with economic reprisals if they voted for unionization, impermissibly soliciting employee grievances, creating an impression that pro-union activities were under surveillance, and asking an employee (Andrews) to spy on her coworkers (i.e., to note and report their pro-union activities). The ALJ fur ther found that the Company had violated section 8(a)(1) and (3) of the Act by cashiering Santana because it believed that she would vote for the Union. The Company appealed. The Board, in the absence of exceptions, adopted the first (generalized) set of findings. It simultaneously overruled the Company’s exceptions to the second set of findings and upheld the ALJ’s assessment of Santana’s firing. Its ensuing order required the Company to cease and desist from these unfair labor practices and from interfering with, restraining, or coercing employees in the exercise of their statutory rights. As to Santana, the order directed the Company to offer her reinstatement, make her" }, { "docid": "4455108", "title": "", "text": "refusing to bargain collectively concerning the change service termination and employee layoffs. The ALJ determined that Purolator had violated all three sections, and that Purolator must reopen the coin room and provide reinstatement and back pay to the fourteen employees who were laid off. Purolator filed exceptions with the Board. The Board directed a remand to the AU for further findings with respect to the applicability of Textile Workers Union v. Darlington Manufacturing Company, 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). The ALJ issued a supplemental decision, concluding that Darlington was applicable and reaffirming in all material aspects the original decision and recommended remedy. Puro-lator again filed exceptions with the Board. The Board subsequently adopted the AU’s section 8(a)(1) and (3) findings and conclusions, but determined that Purolator had not violated section 8(a)(5). The Board also modified the AU’s proposed remedy, removing the requirement that Purolator reopen the change room. Instead, the Board ordered Purolator to “make whole all employees employed in the coin change service who were terminated as a result of the Respondent’s discriminatory decision to close that operation.” Purolator was ordered to offer reinstatement to each of the discriminatees by either (1) reinstituting the coin change service operation and offering each discriminatee reinstatement to his or her former position or a substantially equivalent position; or (2) offering each discriminatee any position in its existing operations which he or she is capable of filling. In the event there were insufficient jobs available to permit immediate reinstatement, the discriminatees who were not placed were to be put on a preferential hiring list for future vacancies. In addition, Purolator was required to make the discriminatees whole by paying each of them the amount he or she would have earned from the date of termination to the date the discriminatee either secures equivalent employment or Purolator makes an offer of reinstatement. II. SECTION 8(a)(1) VIOLATIONS The Board upheld the ALJ’s determinations that Purolator had violated section 8(a)(1) by interrogating employees about their union activities; by threatening employees with reprisals, including termination, for engaging in union activity; by promising" }, { "docid": "12164133", "title": "", "text": "would be better off without a union, and said that the company would subcontract their work or close the plant if the union were voted in. They also solicited a document requesting that the union petition be withdrawn. After the meeting, the company established a grievance committee, an action which the ALJ categorized as a pre-election benefit. The company had already reclassified three receiving clerks to higher-paid positions in the week after the election petition was filed, and later granted an across-the-board pay raise at a point when objections to the election would still have been timely. Another § 8(a)(1) violation was found to have occurred when the company diverted freight to a facility owned by a different firm in order to emphasize that work was slow and jobs were in jeopardy. The company also intimated that the employees might lose their stock option and profit-sharing plans, as well as their pension benefits, if the union won the election. Finally, three days before the election, a supervisor interrogated an employee to discover the names of the persons who had started the union’s organizing effort and to learn how each of the employees would vote. The ALJ also found that the eight discharges and the decision to subcontract violated § 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3) (1976). Behring had argued that its actions were prompted by a severe decline in business at the warehouse, and the ALJ agreed that “subcontracting the warehouse labor ultimately could be financially beneficial.” Nevertheless, he concluded that “although the Respondent eventually could have reduced its costs by laying off most of its own warehouse employees and by subcontracting their work . .., the Respondent was motivated, at least in part, in so doing at that time by a desire to reduce the possibility of another union election in the future.” With one minor exception, the Board affirmed the findings of the ALJ and adopted his recommendations, determining that the company’s economic defense to the § 8(a)(3) charges “failed to rebut the General Counsel’s prima facie case” of unlawfully motivated discharges. To support this conclusion," }, { "docid": "566595", "title": "", "text": "implied) that reported grievances would be adjusted, 261 NLRB at 1266-67; by threatening its employees with loss of current benefits if they supported a union, id. at 1270-71; by threatening its employees with plant closure if they supported a union, id. at 1269-70; by threatening to discharge its employees for engaging in protected concerted action, id. at 1268-69; by promising (expressly or impliedly) and granting benefits to induce its employees to renounce unionization, id. at 1273-75; by coercively interrogating several employees concerning their union activities, id. at 1275-76; and by creating the impression that its employees’ union activities were under surveillance, id. at 1276. See id. at 1288. The ALJ further determined that Conair's disadvantageous treatment of unfair labor practice strikers, based on their union activities, was unlawful under both section 8(a)(1) and section 8(a)(3) of the NLRA. In this category of violations, the ALJ included the Company’s failure to reinstate the strikers immediately upon their unconditional offer to return to work, id. at 1279; its failure initially to reinstate five strikers to positions substantially equivalent to their pre-strike jobs, id. at 1279; its failure ever to reinstate thirteen strikers, id. at 1281; and its discharge of three previously reinstated strikers, id at 1282. See id. at 1288. Conair’s 8(a)(1) and 8(a)(3) violations, the ALJ concluded, were sufficiently grave and numerous to place the Company’s conduct within the “outrageous” and “pervasive” category described by the Supreme Court in Gissel. Id. at 1285. The ALJ’s recommended order directed Conair to cease and desist from the enumer ated unfair labor practices and from violating section 8(a)(1) in any other manner, and to implement extraordinary notice and access remedies. Id. at 1283, 1285. The ALJ declined to recommend a bargaining order, however, because the Union never had obtained authorization cards from a majority of the unit employees and the Board, at the time of the ALJ’s decision, had never issued a nonmajority bargaining order. Id. at 1284-85 & n. 451. The full Board generally affirmed the ALJ’s findings and proposed remedies. Id. at 1189-92; id. at 1195 & n. 28 (Chairman Van de" }, { "docid": "15740268", "title": "", "text": "POLITZ, Circuit Judge: The National Labor Relations Board found that TRW, Inc., violated §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(3), during and immediately after a campaign to organize its Corpus Christi, Texas plan. We conclude that the Board’s findings are not supported by substantial evidence on the record considered as a whole and, accordingly, deny enforcement of the Board’s order. TRW manufactures and distributes electronic equipment nationwide. The company employs approximately 200 persons at its resistor plant in Corpus Christi. In mid-March of 1978, the International Union of Electrical, Radio, and Machine Workers, AFL-CIO-CLC (Union) began an organizing campaign at the Corpus Christi plant. Meetings were held, union cards were signed and pro-union activities commenced. By the middle of April TRW became aware of the campaign and communicated its opposition to the employees. On April 28, the Union successfully petitioned for an election. The election was held on July 19 and resulted in union certification on that date. Subsequent to the election, the Union filed several unfair labor practice charges against TRW claiming violations of §§ 8(a)(1), (3), and (4) of the National Labor Relations Act. All violations were predicated on events involving two employees, Henry Miranda and Rosie Garza. The ALJ found that TRW had violated §§ 8(a)(1) and 8(aX3) by disciplining Garza and Miranda (Miranda was suspended twice and Garza was discharged), and that TRW had violated § 8(a)(1) by interrogating, threatening, and coercing them. The Board basically adopted the ALJ’s findings and conclusions, modifying the broad cease-and-desist language in the recommended order and substituting a different notice. The Board’s determination will be sustained if supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Delco-Remy Div., General Motors Corp. v. N.L.R.B., 596 F.2d 1295 (5th Cir. 1979). Recognizing the Board’s expertise in labor law, we will defer to plausible inferences it draws from the evidence, even if we might reach a contrary result were we deciding the case" }, { "docid": "566608", "title": "", "text": "and Conair does not seriously argue otherwise. Three of the Board’s five members, however, further determined that the ALJ’s conclusion should be augmented in line with the exception pressed by the General Counsel and the Union; these members cited record evidence supporting the contention “that the April 20 mailgram also violated Section 8(a)(3) and (1) of the Act by unlawfully terminating the striking employees.” 261 NLRB at 1189-90. Conair, in its brief responding to the General Counsel’s and Union’s exception, had objected that the pleadings failed to alert it to the presence of an actual termination issue stemming from the mailgram. The Board’s majority declared as its answer to this lack of notice objection: Although [Conair] asserts that it had no notice that the April 20 mailgram would be litigated as a violation of Sec. 8(a)(3), the complaint specifically alleges that the mailgram threatened employees with discharge in violation of Sec. 8(a)(1), and other paragraphs of the complaint allege that other conduct by [Conair] violated Sec. 8(a)(8). Further, in its exceptions, [Conair] argued that the law and the interpretation of the facts now in the record do not support the finding of a violation. [Conair] does not argue that it was precluded from adducing any exculpatory facts or that it would have altered its presentation of the case in any manner. Accordingly, we find no merit to [Conair’s] contentions since the issue was fully litigated and all of the operative facts underlying the finding of a 8(a)(3) and (1) violation are present in the record. 261 NLRB at 1190 n. 5 (citing Southern Newspapers, Inc., 255 NLRB 154, 154 n. 1 (1981)) (emphasis added). Board Member Hunter, joined by Chairman Van de Water, dissented from the majority’s extension of the ALJ’s decision on the mailgram episode. They reasoned: [T]he discharge issue was initially raised in the [Union’s] charge but was not alleged as an unfair labor practice in the [Regional Director’s] complaint, [thus leading Conair] to believe that the discharge issue was not before the Board. Sec. 3(d) of the Act vests the authority to issue unfair labor practice complaints" }, { "docid": "2935208", "title": "", "text": "by an administrative law judge (ALJ). The ALJ found that the Company had transgressed section 8(a)(1) of the Act by improperly interrogating employees, threatening them with economic reprisals if they voted for unionization, impermissibly soliciting employee grievances, creating an impression that pro-union activities were under surveillance, and asking an employee (Andrews) to spy on her coworkers (i.e., to note and report their pro-union activities). The ALJ fur ther found that the Company had violated section 8(a)(1) and (3) of the Act by cashiering Santana because it believed that she would vote for the Union. The Company appealed. The Board, in the absence of exceptions, adopted the first (generalized) set of findings. It simultaneously overruled the Company’s exceptions to the second set of findings and upheld the ALJ’s assessment of Santana’s firing. Its ensuing order required the Company to cease and desist from these unfair labor practices and from interfering with, restraining, or coercing employees in the exercise of their statutory rights. As to Santana, the order directed the Company to offer her reinstatement, make her financially whole, and post a remedial notice. We need not linger long over the Board’s generalized findings. Section 7 of the Act, 29 U.S.C. § 157, guarantees employees “the right to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing....” In turn, section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their section 7 rights. Id. § 158(a)(1). Here, the ALJ found myriad violations of section 8(a)(1) and the Company, in its appeal to the Board, did not object to those findings. See E.C. Waste, Inc., 339 N.L.R.B. No. 39 at n. 1. Consequently, the Board adopted the findings. That ends this aspect of the matter. When a party fails to raise particular issues before the Board, it ordinarily forfeits any right to challenge those findings on a petition for judicial review. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982); see also" }, { "docid": "566607", "title": "", "text": "been violated. See, e.g., id. at 1278 n. 417, 1279, 1281. In exceptions to the ALJ’s decision, the Board’s General Counsel asserted that the Judge erred by: [f]ailing to find that [Conair] violated Section 8(a)(1) and (3) of the Act by discharging all of its unfair labor practice strikers as of April 22, 1977, and by failing to provide an appropriate remedy in connection therewith. General Counsel’s Exceptions to the Decision of the Administrative Law Judge at 2 (November 14, 1980). The Union filed a similar exception, and specifically asserted that Conair should have been ordered “to make all of the [affected] unfair labor prac tice strikers ... whole for any loss of pay commencing April 22, 1977 until the date of a bona fide offer of reinstatement.” Charging Party’s Exceptions to the Decision of the Administrative Law Judge at 2 (November 7, 1980). The Board unanimously affirmed the ALJ’s determination that the mailgram unlawfully threatened striking employees with discharge in violation of § 8(a)(1). We agree that the record fully supports the ALJ’s conclusion, and Conair does not seriously argue otherwise. Three of the Board’s five members, however, further determined that the ALJ’s conclusion should be augmented in line with the exception pressed by the General Counsel and the Union; these members cited record evidence supporting the contention “that the April 20 mailgram also violated Section 8(a)(3) and (1) of the Act by unlawfully terminating the striking employees.” 261 NLRB at 1189-90. Conair, in its brief responding to the General Counsel’s and Union’s exception, had objected that the pleadings failed to alert it to the presence of an actual termination issue stemming from the mailgram. The Board’s majority declared as its answer to this lack of notice objection: Although [Conair] asserts that it had no notice that the April 20 mailgram would be litigated as a violation of Sec. 8(a)(3), the complaint specifically alleges that the mailgram threatened employees with discharge in violation of Sec. 8(a)(1), and other paragraphs of the complaint allege that other conduct by [Conair] violated Sec. 8(a)(8). Further, in its exceptions, [Conair] argued that the" }, { "docid": "2380213", "title": "", "text": "authorization cards to coworkers. After what the Board later described as “coercive and restraining” interrogation of union supporters, Hoffman laid off each employee who had engaged in organizing activities, including Castro. Hoffman Plastic Compounds, Inc., 306 N.L.R.B. 100 (1992). When Hoffman received notice from the NLRB that the Union had filed a representation petition, it made some attempt to recall the discharged workers. A March 10, 1989 letter from Hoffman to Castro stated, “[i]t looks like we’ll need a few men soon,” and asked him to contact his former supervisor “no later than 4 P.M., Monday, March 13, 1989.” Hoffman Plastic Compounds, Inc., 326 NLRB No. 86 (1998). Castro never responded. After one of the discharged employees filed charges with the Board, an Administrative Law Judge found that Hoffman had engaged in multiple unfair labor practices. The Board adopted the ALJ’s findings, concluding not only that the company had unlawfully interrogated employees about their union activities and sympathies, but that “in order to rid itself of known union supporters, [Hoffman] discriminatorily selected union adherents for layoff’ in violation of Sections 8(a)(1) and (3) of the NLRA, 29 U.S.C. 168(a)(1), (3). Hoffman Plastic, 306 N.L.R.B. at 100. The Board ordered Hoffman to cease and desist from such unfair labor practices, to post a notice at the work site, and to reinstate and make whole those union supporters it had illegally fired. When a dispute arose as to the proper computation of backpay, a compliance proceeding was held before another ALJ. Castro appeared at the hearing, testifying through an interpreter. When Hoffman’s attorney began to question Castro about his citizenship and authorization to work in the United States, the Board’s General Counsel objected. The ALJ sustained the objection, but not before Castro had stated that he was a Mexican national and that the birth certificate, he had used to gain employment ,at Hoffman was borrowed from a friend. On the basis of this admission, the ALJ recommended neither reinstatement nor backpay for Castro. See Hoffman Plastic Compounds, Inc., 314 N.L.R.B. 683, 685 (1994). While the ALJ’s recommendation was under consideration by the" }, { "docid": "5378476", "title": "", "text": "evidence” standard we are aware of our duty to examine the entire record, including the evidence opposed to the Board’s view, to determine whether the record contains “such evidence as a reasonable mind might accept as adequate to support a conclusion” and to find that the decision is “justified by the fair estimate of the worth of the testimony of the witnesses or its informed judgments on matters within its special competence.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-90, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1957). The testimony before the Administrative Law Judge (hereinafter referred to as ALJ) revealed that there had been interrogation by the company of its employees in regard to their union activity, and that discharge and other forms of reprisals were threatened if the employees supported the union or signed the authorization cards. In addition, the company promised to place those who voted for the company in management positions in an effort to dissuade employees from supporting the union. Other testimony revealed that the company maintained lists of employees on the basis of pro or anti-unionism, creating the impression that it had its employees under surveillance. We find there is substantial evidence to support the Board’s finding of a violation of Section 8(a)(1). The company also objects, claiming the ALJ used an “unnatural and legally unsupported test” relying solely on the absence of specific denials by the supervisors who engaged in the violative conduct. The Board found that the ALJ even though not making explicit credibility findings, implicitly resolved conflicts in the testimony “by accepting and relying on the testimony of the General Counsel’s witnesses,” and in addition that the findings were based on demeanor. We agree with the conclusion reached by the Board that “there is no basis to overturn the . . . evaluation of credibility based on demeanor and the record as a whole. . . .” See NLRB v. Braswell Motor Freight Lines, 486 F.2d 743, 745 (7th Cir. 1973). B. The Discharge and Transfer Violations The Board found that the company violated Section 8(a)(3) in its actions involving" }, { "docid": "16391316", "title": "", "text": "the election and the chance for a fair rerun election of the front page editorial warning that Hedstrom might move its plant in the event of unionization; and to consider what effect the passage of time would have on the possibility of having a fair second election. After these events, chronicled in detail in the prior opinion, a labor strike was called at the Hedstrom plant during the summer of 1976 that resulted in several incidents involving company representatives and certain employees. Complaints of additional unfair labor practices arising out of these subsequent episodes were filed with the Board, and the ALJ conducted a further hearing. Following the filing of exceptions to the recommendations of the ALJ on the part of both Hedstrom and the General Counsel, the Board affirmed the findings of the ALJ that Hedstrom had committed additional unfair labor practices. In particular, the Board determined that Hedstrom violated § 8(a)(1) when William Griffiths coercively interrogated Rena Ritchey and solicited grievances from her; when President Ketcham threatened Erma England with onerous working conditions because she had engaged in protected concerted activity; and when Clark Ferguson threatened Delores Casteel with loss of her job and told her that Hedstrom would never sign a contract with the Union. Additionally, the Board found that Hedstrom violated § 8(a)(3) and (1) by refusing to provide Rena Ritchey an offer of reinstatement with a reasonable time for her to respond. Finally, the Board decided that Hedstrom violated § 8(a)(5) by refusing to bargain with the Union and by unilaterally promulgating certain new work rules. As a result of these findings, the Board ordered the Company to cease and desist from engaging in specified unfair labor practices and from in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under the Act. Affirmatively, the Board directed Hedstrom to offer Rena Ritchey reinstatement and to make her whole for any loss of pay she may have suffered as a consequence of the discrimination practiced against her. The Board’s order also required the Company to rescind the work rules that" }, { "docid": "8683679", "title": "", "text": "According to Burris and Adgerson, Harris’s threats were made in direct response to conversations with several of Sam’s front-end employees about the benefits of Union membership. The General Counsel, after presenting the SPURS’ testimony, moved for an amendment to the complaint to incorporate unfair labor practice charges stemming from Harris’s unlawful threats of store closing. The ALJ allowed the amendment over Sam’s objection and allowed Sam’s additional time to defend against the new allegation. After the hearing, the ALJ issued an opinion in which it determined that Sam’s had violated § 8(a)(1) and (a)(3) of the Act when: (1) Belt had threatened Porter that if the Union were victorious in the election the store would close; (2) a manager had discriminatorily disciplined Perez; and (3) Harris had threatened several employees that if the Union were successful in its election bid, Sam’s would shut down. As a result of these findings, the ALJ ordered Sam’s to cease and desist from its illegal acts, remove from its personnel files any reference to Perez’s unlawful discipline, and post a notice in the Landover Sam’s. Sam’s appealed the ALJ’s decision to the Board. With only minor modifications, the Board affirmed the ALJ’s opinion in all respects and adopted the ALJ’s proposed order. Thereafter, Sam’s filed the instant petition for review. The Board cross-petitions for enforcement of its order. Sam’s petitions for review on several grounds. First, Sam’s argues that the unfair labor practice findings relating to the actions of Belt and Perez are not supported by substantial evidence and should be overturned. Next, Sam’s contends that the amendment of the complaint to incorporate a charge that Harris threatened employees violated § 10(b) of the Act. 29 U.S.C.A. § 160(b) (West 1973). Also, Sam’s asserts that this amendment violated its right to fundamental fairness and due process. Further, Sam’s asserts that if the amendment of the complaint was proper, the unfair labor practice finding stemming from the actions of Harris was not supported by the evidence presented at the hearing. We reverse the Board’s finding that Belt unlawfully threatened Porter because that conclusion is not" }, { "docid": "13008730", "title": "", "text": "58 S.Ct. 904, 82 L.Ed. 1381 (1938) (holding that the discrepancy between a charge alleging discriminatory refusal to reinstate, and the Board’s finding of discriminatory discharge, did not violate the company’s due process rights). Compare Pergament United Sales, Inc., 920 F.2d at 135-36 (granting enforcement of an NLRB order where the Board had charged the employer with violating section 8(a)(3), but ultimately found it to have violated section 8(a)(4) with respect to the same employees), with Lotus Suites, Inc. v. NLRB, 32 F.3d 588, 592 (D.C.Cir.1994) (denying enforcement where the charge contained only a “boilerplate allegation that the Employer violated § 8(a)(1) and [was] utterly lacking in factual specificity”). Ill TBC next argues that procedural irregularities in the complaint and hearing before the ALJ require us to set aside the NLRB’s findings regarding threats Ken-ney and Britsch made to employees. TBC argues that those findings should be set aside because the General Counsel’s complaint did not put the company on notice of the conduct at issue, and because the ALJ improperly sequestered Kenney and Britsch during the proceeding, preventing them from hearing the allegations that union witnesses made against them. TBC claims that these irregularities violated both due process and NLRB rules. We disagree. See Pergament United Sales, Inc., 920 F.2d at 134 (holding that “due process is satisfied when a complaint gives a respondent fair notice ... and when the conduct implicated in the alleged violation has been fully and fairly litigated”). The company’s principal challenge to the complaint is that it alleged that Kenney and Britsch threatened employees on dates different from those proven at the hearing. The complaint alleged that Ken-ney made a threat “on or about” January 12, 1996, while the evidence showed that Kenney’s threat to William Martin took place two weeks later, on January 26. Similarly, the compláint alleged a threat made by Britsch “on or about” January 24, 1996, while the evidence concerned statements he made to Michael Flannery six days earlier, on January 18. These minor variances in “on or about” dates, however, were insufficient to prejudice the company’s hearing preparation. Indeed," }, { "docid": "16966473", "title": "", "text": "off on March 11, ten had signed union authorization cards, and four were also members of the Union’s seven-person organizing committee. Amidst this workforce reduction process, on March 10, the Company hired ten Snell-ing employees who had previously been working only on a temporary basis. A week thereafter, the Company granted wage increases to thirty of the remaining employees. Subsequent to the downsizing, the Union filed a charge of unfair labor practices and the Board’s General Counsel issued a complaint against Huck Store based on the allegations made by the Union. After a five-day hearing, an administrative law judge (the “ALJ”) issued a recommended order, finding that Huck Store violated the NLRA by: (1) interrogating and threatening employees in connection with their un ion activities (in violation of Section 8(a)(1) of the Act); and (2) discharging or laying off 38 members of its workforce on account of antiunion animus (in violation of Section 8(a)(1) and (3) of the Act). On appeal to a three-member panel of the NLRB, Huck Store contested the ALJ’s recommendation as to the workforce reduction, but did not dispute the ALJ’s finding that Huck Store’s coercive interrogation and surveillance of its employees’ union activities violated the Act. On July 13, 2001, the Board’s three-member panel issued an order adopting the ALJ’s conclusion that the 33-person workforce reduction violated Section 8(a)(1) of the Act. The Board ordered Huck Store to cease and desist from its coercive and threatening tactics, to reinstate the Huck Store employees it had discharged or laid off, and to “make whole” (by issuing back compensation) the 13 Snelling employees who. were discharged in violation of the Act. II. ANALYSIS Under the NLRA, employees have the right to form, join or assist labor organizations, and to engage in activities for the purpose of collective bargaining. See 29 U.S.C. § 157 (Section 7 of the Act). Section 8(a)(1) of the Act protects such rights, by making it unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” The Act also prohibits an employer from" }, { "docid": "2273233", "title": "", "text": "were hired. On the complaint of the Union, the National Labor Relations Board (“the Board”) charged Ultrasystems with violations of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 158(a)(1) & (3). Following a 13-day trial, the Administrative Law Judge (“ALJ”) found that “the evidence is clear that [Ultrasys-tems] has in place an unlawful policy designed to screen from employment individuals whom it deems, rightly or wrongly, to be likely to engage in union activity.” It found anti-union animus in connection with the handling of the 66 applications and, in particular, in connection with its refusal to hire Cree-den, the paid union organizer. It also found a number of other NLRA violations involving current employees, which are not at issue on this appeal. The ALJ required Ultrasystems “to pay backpay to those individuals, determined at a compliance proceeding, to have been denied employment at either Rocklin or Bakersfield because of their union background.” In addition, the ALJ ordered the company to post at the Rocklin and Bakersfield sites a “Notice to Employees” acknowledging the past violations by Ultrasystems and detailing specific employee rights to organize and engage in collective action. In the event that the two projects were completed, it required Ultrasystems to mail the notice to the employees who had worked at the two projects and to post copies at Ultrasys-tems’ current project sites. The Board adopted the rulings, findings, and conclusions of the ALJ, with a modification in the remedial order. Rejecting any suggestion that the reinstatement remedy was not practicable for violations by companies in the construction industry, the Board required Ultrasystems to offer employment as well as backpay to all 66 union applicants whom Ultrasystems refused to consider or to hire. In particular, it required the company to: Make whole all employee-applicants at Rocklin and Bakersfield for any losses they may have suffered by reason of the discriminatory refusal to consider them for employment_ Offer all employee-applicants at Rocklin and Bakersfield employment in the positions for which they applied, or if those jobs no longer exist, to substantially equivalent positions, without" } ]

[ { "docid": "22628828", "title": "", "text": "“Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” 18 U. S. C. § 1964(c). Both RICO and the Clayton Act are designed to remedy economic injury by providing for the recovery of treble damages, costs, and attorney’s fees. Both statutes bring to bear the pressure of “private attorneys general” on a serious national problem for which public prosecutorial resources are deemed inadequate; the mechanism chosen to reach the objective in both the Clayton Act and RICO is the carrot of treble damages. Moreover, both statutes aim to compensate the same type of injury; each requires that a plaintiff show injury “in his business or property by reason of” a violation. The close similarity of the two provisions is no accident. The “clearest current” in the legislative history of RICO “is the reliance on the Clayton Act model.” Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 489 (1985). As early as 1967, Senator Hruska had proposed bills that would use “the novel approach of adapting antitrust concepts to thwart organized crime.” ABA Report 78. As Senator Hruska explained: “The antitrust laws now provide a well established vehicle for attacking anticompetitive activity of all kinds. They contain broad discovery provisions as well as civil and criminal sanctions. These extraordinarily broad and flexible remedies ought to be used more extensively against the ‘legitimate’ business activities of organized crime.” 113 Cong. Rec. 17999 (1967). The American Bar Association’s Antitrust Section agreed that “[t]he time tested machinery of the antitrust laws contains several useful and workable features which are appropriate for use against organized crime,” including the use of treble-damages remedies. 115 Cong. Rec. 6995 (1969). The use of an antitrust model for the development of remedies against organized crime was unquestionably at work when Congress later considered the bill that eventually be came RICO. That bill, introduced by Senators McClellan" } ]

[ { "docid": "22254874", "title": "", "text": "no effort would be made by the sufferer to obtain redress, if the private interest were not supported by the imposition of punitive damages. Id. at 523, 6 S.Ct. at 114 (emphasis supplied). The Court, thus, early viewed statutory multiple damages as an effective means of assuring the enforcement of existing laws and deterring future injury when the legislature in situations concerning the “security of life and property” afforded the private litigant a premium for bringing suit. More recently and in the context of a substantially similar provision in the antitrust act, the Supreme Court stated that, in addition to compensating victims, “treble damages also play an important role in penalizing wrongdoers and deterring wrongdoing, as we have frequently observed,” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485, 97 S.Ct. 690, 696, 50 L.Ed.2d 701 (1977), and that the “very idea of treble damages reveals an intent to punish past, and to deter future, unlawful conduct.” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981). Indeed, several courts already have concluded that the treble damages provision at issue here is punitive in character. The United States Court of Appeals for the Fifth Circuit, addressing the question whether the trebled portion of RICO damages was remedial or penal, held that it was penal, observing that “Congress trebled RICO damages as part of [its] overall attack on the public wrongs of organized crime.” Abell v. Potomac Ins. Co., 858 F.2d 1104, 1141 (5th Cir.1988). The United States Court of Appeals for the Seventh Circuit similarly held that a civil RICO claim for treble damages is best characterized as “penal in nature.” Tellis v. U.S. Fidelity & Guar. Co., 805 F.2d 741, 746 (7th Cir.1986) vacated in part 483 U.S. 1015, 107 S.Ct. 3255, 97 L.Ed.2d 755 (1987). If the instant case is an example of RICO suits against a municipal corporation, it is evident that an award of treble damages would be punitive rather than liquidated damages to assure full compensation. The plaintiffs here easily can establish the compensatory damages" }, { "docid": "23120987", "title": "", "text": "of the contracts make this clear. Our cases have placed different statutory treble-damages provisions on different points along the spectrum between purely compensatory and strictly punitive awards. Thus, in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 784 (2000), we characterized the treble-damages provision of the False Claims Act, 31 U. S. C. §§ 3729-3733, as “essentially punitive in nature.” In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485 (1977), on the other hand, we explained that the treble- damages provision of § 4 of the Clayton Act, 15 U. S. C. § 15, “is in essence a remedial provision.” Likewise in American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U. S. 556, 575 (1982), we noted that “the antitrust private action [which allows for treble damages] was created primarily as a remedy for the victims of antitrust violations.” (Emphasis added.) And earlier this Term, in Cook County v. United States ex rel. Chandler, ante, at 130, we stated that “it is important to realize that treble damages have a compensatory side, serving remedial purposes in addition to punitive objectives.” Indeed, we have repeatedly acknowledged that the treble-damages provision contained in RICO itself is remedial in nature. In Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 151 (1987), we stated that “[b]oth RICO and the Clayton Act are designed to remedy economic injury by providing for the recovery of treble damages, costs, and attorney’s fees.” (Emphasis added.) And in Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 241 (1987) we took note of the “remedial function” of RICO’s treble-damages provision. In light of our case law’s treatment of statutory treble damages, and given the uncertainty surrounding the parties’ intent with respect to the contractual term “punitive,” the application of the disputed language to respondents’ RICO claims is, to say the least, in doubt. And Vimar instructs that we should not, on the basis of “mere speculation” that an arbitrator might interpret these ambiguous agreements in a manner that casts their enforceability into doubt," }, { "docid": "20871151", "title": "", "text": "of actual harm, but the Supreme Court has “repeatedly acknowledged that the treble-damages provision contained in RICO itself is remedial in nature.” PacifiCare, 538 U.S. at 406, 123 S.Ct. at 1535. The Court’s ambivalence about punitive damages complicates analysis here, but we believe PacifiCare cannot salvage a claim against HISD. First, the Supreme Court’s characterization of RICO treble damages as “remedial” in PacifiCare cannot substitute for an express Congressional abrogation of municipal immunity from treble damages, which, whatever the characterization, exceed actual provable damages. To hold otherwise would mock City of Newport. Second, nothing in PacifiCare contravenes the Court’s earlier holdings that treble-damages provisions serve both compensatory and punitive functions. See Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 240, 107 S.Ct. 2332, 2345, 96 L.Ed.2d 185 (1987); accord Genty, 937 F.2d at 910 (“there is convincing authority that Congress authorized civil RICO’s powerful treble damages provision to serve a punitive purpose”). Third, the narrow question posed in PacifiCare was whether an arbitration agreement’s ban on punitive damages included RICO treble damages. The Court refused to interpret the private parties’ agreement, holding that threshold duty for an arbitrator. PacifiCare has no bearing on the liability of governmental entity defendants for treble damages under RICO. For these reasons, we conclude that GRG cannot proceed against HISD under RICO’s mandatory treble damage provision. Because Congress wrote no single-damage alternative, and we lack power to revise federal statutes, Appellants fail to state a cognizable RICO claim against HISD. See Cullen v. Margiotta, 811 F.2d 698, 713 (2d Cir.1987) (“civil RICO requires that a successful plaintiff be awarded treble damages”). II. State Law Claims A. Breach of Contract and Estoppel Theories GRG appeals the district court’s summary judgment rejecting its state law claims against HISD for breach of contract and estoppel. GRG’s breach of contract argument relies on an implied duty of good faith, which, as the district court noted, Texas law rejects except in the context of special relationships. See Hall v. Resolution Trust Corp., 958 F.2d 75, 79 (5th Cir.1992); see also City of Midland v. O'Bryant, 18 S.W.3d 209, 215 (Tex.2000)." }, { "docid": "7797512", "title": "", "text": "fail to see how the preference of parties for an arbitral forum has somehow been silently proscribed. Nor could Gilmer successfully contend that the ADEA’s provision of liquidated damages for willful violations, 29 U.S.C. § 626(b), evinces an intent to preclude waiver of the judicial forum. In Mitsubishi and McMahon, the Supreme Court rejected arguments that arbitration would vitiate the treble damages provisions in the Clayton Act and the Racketeer Influenced and Corrupt Organizations Act. See Mitsubishi, 473 U.S. at 635-37, 105 S.Ct. at 3358-59; McMahon, 107 S.Ct. at 2344-45. While recognizing that the treble damages provisions are primarily compensatory in nature, the Court emphasized that those provisions, like that for liquidated damages under the ADEA, play an important role in deterrence. See Mitsubishi, 473 U.S. at 635-36, 105 S.Ct. at 3358-59 (Clayton Act); McMahon, 107 S.Ct. at 2345 (RICO statute); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125, 105 S.Ct. 613, 623-24, 83 L.Ed.2d 523 (1985) (ADEA). In fact, it would be the unusual statute whose remedial provisions did not serve both compensatory and deterrent purposes. This mixing of compensatory and deterrent functions in the remedial provisions of a statute in no way interferes with an arbitrator’s ability to effectuate the purposes of a statute. There is no reason, for example, why an arbitrator of an ADEA dispute cannot award liquidated damages should he or she find a willful violation of the statute. “[S]o long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.” Mitsubishi, 473 U.S. at 637, 105 S.Ct. at 3359. Even if arbitration were somehow thought to impinge on the ability of the ADEA’s liquidated damages provision to fulfill its role as a deterrent to willful violations of the statute, it certainly would not interfere with the ordinary, run-of-the-mill ADEA case which does not implicate the liquidated damages remedy. See McMahon, 107 S.Ct. at 2345. Gilmer also argues that the arbitration agreement should not be enforced because it constituted a prospective waiver. This plainly is" }, { "docid": "22666421", "title": "", "text": "§4 of the Clayton Act, 15 U. S. C. § 15, and pursued by Soler here by way of its third counterclaim, seeks primarily to enable an injured competitor to gain compensation for that injury. “Section 4 ... is in essence a remedial provision. It provides treble damages to ‘[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . .’ Of course, treble damages also play an important role in penalizing wrongdoers and deterring wrongdoing, as we also have frequently observed. ... It nevertheless is true that the treble-damages provision, which makes awards available only to injured parties, and measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485-486 (1977). After examining the respective legislative histories, the Court in Brunswick recognized that when first enacted in 1890 as §7 of the Sherman Act, 26 Stat. 210, the treble-damages provision “was conceived of primarily as a remedy for ‘[t]he people of the United States as individuals,’” 429 U. S., at 486, n. 10, quoting 21 Cong. Rec. 1767-1768 (1890) (remarks of Sen. George); when reenacted in 1914 as § 4 of the Clayton Act, 38 Stat. 731, it was still “conceived primarily as ‘opening] the door of justice to every man, whenever he may be injured by those who violate the antitrust laws, and giv[ing] the injured party ample damages for the wrong suffered.’” 429 U. S., at 486, n. 10, quoting 51 Cong. Rec. 9073 (1914) (remarks of Rep. Webb). And, of course, the antitrust cause of action remains at all times under the control of the individual litigant: no citizen is under an obligation to bring an antitrust suit, see Illinois Brick Co. v. Illinois, 431 U. S. 720, 746 (1977), and the private antitrust plaintiff needs no executive or judicial approval before settling one. It follows that, at least where the international cast of a transaction would otherwise add an element of uncertainty to dispute resolution, the" }, { "docid": "13621117", "title": "", "text": "as part of the scheme of enforcement of statutes enacted to protect United States commerce.”) Appellants argue that to apply the doctrine of forum non conveniens to a RICO action would frustrate Congress’ intent to give RICO plaintiffs a right of access to a federal forum to seek redress. To add sinew to this theory, appellants submit an argument in the form of the familiar categorical syllogism. Such an argument consists of comparing two terms— the minor with the major — by means of a middle term, to reach a conclusion. The major premise here is that, under the law of this Circuit, federal antitrust claims are immune from the doctrine of forum non conveniens. The minor premise is that RICO claims are, by analogy, the same as antitrust claims. Therefore, appellants conclude, RICO claims should also be immune. Before us, as in the district court, the appellees challenge the factual basis of the minor premise, thereby vitiating the conclusion urged upon us by the liquidators. A. To support their minor premise contention, appellants make detailed reference to RICO’s legislative history. They note Congress’ intent that “those who have been wronged by organized crime should at least be given access to a legal remedy.... It is the intent of this body ... to see that innocent parties ... have a right to obtain proper redress_” Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 241, 107 S.Ct. 2332, 2345, 96 L.Ed.2d 185 (1987) (citing legislative history of RICO treble-damages provision). Appellants further contend that the RICO venue provision, 18 U.S.C. § 1965(a), was intended to be the same as that in the Clayton Act. Br. for appellants at 28 (citing H.Rep.No. 1549, 91st Cong., 2d. Sess. 58 (1970)), U.S. Code Cong. & AdmimNews 1970, 4007. From these excerpts of legislative history, the appellants then apply the method of analogy. They argue that, as in the case of the federal antitrust statutes, RICO is an effort to set forth a national policy to deal with a national threat to the commerce of the United States, and that private suits under the RICO" }, { "docid": "16996261", "title": "", "text": "representative or formal probate upon the death of a Ruler of Dubai, the suit against the late Sheikh Rashid must be dismissed. While the Dubai Defendants’ assertions may turn out to be accurate, the plaintiffs have alleged sufficient facts to survive the motion to dismiss; the plaintiffs will be entitled to engage in discovery to confirm the identity of, or identify, those entities or persons who have assumed the legal obligations of Stock Holding Company and Sheikh Rash-id. See Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.1995); Swartz v. Gold Dust Casino, Inc., 91 F.R.D. 543, 546 (D.Nev.1981); Saffron v. Wilson, 70 F.R.D. 51, 56 (D.D.C.1975). 4. Whether RICO claims survive a defendant’s death Relying principally upon Genty v. Resolution Trust Corp., 937 F.2d 899, 912-13 (3d Cir.1991), the defendants argue that the RICO count against Sheikh Rashid’s estate must be dismissed, because it is punitive in nature. The plaintiffs counter that the Dubai Defendants have ignored the Supreme Court’s holding that RICO’s legislative history “reveals the ... emphasis on the remedial role of the treble-damages provision,” Shearson/American Express, Inc., v. McMahon, 482 U.S. 220, 240, 107 S.Ct. 2332, 2345, 96 L.Ed.2d 185 (1987), and that the only federal appellate court to have been presented with a similar issue has held that RICO claims survive a plaintiff’s death, because the “primary purpose” of RICO is remedial. Plaintiffs’ Opposition, at 38 (citing Faircloth v. Finesod, 938 F.2d 513, 518 (4th Cir.1991)). The plaintiffs also point out that numerous district courts “have concluded that a civil RICO suit is remedial, not penal, and accordingly survives the death of a party.” Id. (quoting United States v. Private Sanitation Indus. Assoc, of Nassau/Suffolk, 159 F.R.D. 389, 390 (E.D.N.Y.1994) (collecting eases)). Recognizing the split of authority on the question, compare Confederation Life Ins. Co. v. Goodman, 842 F.Supp. 836, 838 (E.D.Pa.1994) with County of Oakland v. Detroit, 784 F.Supp. 1275, 1285 (E.D.Mich. 1992), the Court is persuaded that a civil RICO suit survives the death of a defendant. Although the treble damages provisions of a civil RICO suit may suggest" }, { "docid": "22059847", "title": "", "text": "compensatory side, serving remedial purposes in addition to punitive objectives .... While the tipping point between pay-back and punishment defies general formulation, being dependent on the workings of a particular statute and the course of particular litigation, the facts about the FCA show that the damages multiplier has compensatory traits along with the punitive.”); Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 151, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) (“Both RICO and the Clayton Act are designed to remedy economic injury by providing for the recovery of treble damages, costs, and attorney’s fees.”); Am. Soc’y of Mech. Eng’rs v. Hydrolevel Corp., 456 U.S. 556, 575, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) (“It is true that antitrust treble damages were designed in part to punish past violations of the antitrust laws.... But treble damages were also designed to deter future antitrust violations .... Moreover, the antitrust private action was created primarily as a remedy for the victims of antitrust violations.”); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-86, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) (“Section 4 [of the Clayton Act], in contrast, is in essence a remedial provision. It provides treble damages to ‘[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws.... ’ Of course, treble damages also play an important role in penalizing wrongdoers and deterring wrongdoing, as we also have frequently observed.... It nevertheless is true that the treble-damages provision, which makes awards available only to injured parties, and measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.”). Simply put, interpretations of the precursors to section 284, of section 284 itself, and of any other enhanced damages statutes give rise to no inference that Congress was merely reenacting consistently-interpreted statutory language with the 1952 Act. That inconsistency seems to abound in the case law is nothing new. According to Professor Chisum, “[wjhether the purpose of an increased damage award should be exemplary (i.e. to punish and deter flagrant acts of patent infringement)" }, { "docid": "22059848", "title": "", "text": "S.Ct. 690, 50 L.Ed.2d 701 (1977) (“Section 4 [of the Clayton Act], in contrast, is in essence a remedial provision. It provides treble damages to ‘[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws.... ’ Of course, treble damages also play an important role in penalizing wrongdoers and deterring wrongdoing, as we also have frequently observed.... It nevertheless is true that the treble-damages provision, which makes awards available only to injured parties, and measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.”). Simply put, interpretations of the precursors to section 284, of section 284 itself, and of any other enhanced damages statutes give rise to no inference that Congress was merely reenacting consistently-interpreted statutory language with the 1952 Act. That inconsistency seems to abound in the case law is nothing new. According to Professor Chisum, “[wjhether the purpose of an increased damage award should be exemplary (i.e. to punish and deter flagrant acts of patent infringement) or compensatory (i.e. to compensate the patent owner for immeasurable expenses and losses) is a longstanding controversy in the law. Perhaps the best view is that increased awards combine both purposes.” 7 Donald S. Chisum, Chisum on Patents § 20.03[4][b][iii] (2002). Thus, while some courts have held that a finding of willfulness is necessary to support an award of enhanced damages, other courts have taken a remedial view of the statute. See, e.g., Saturn Mfg., Inc. v. Williams Patent Crusher & Pulverizer Co., 713 F.2d 1347, 1358 (8th Cir.1983) (“It appears that the district court imposed a higher standard, the exceptional circumstances standard, in denying increased damages. Although an award of increased damages is discretionary under the statute and the decided eases, nonetheless in view of the analysis in Devex that section 284 does not incorporate the exceptional circumstances standard of section 285, ... we feel it appropriate to remand this issue to the district court for further consideration in light of Devex.”); Trio Process Corp. v. L. Goldstein’s Sons, Inc., 638 F.2d 661, 663" }, { "docid": "16996262", "title": "", "text": "the remedial role of the treble-damages provision,” Shearson/American Express, Inc., v. McMahon, 482 U.S. 220, 240, 107 S.Ct. 2332, 2345, 96 L.Ed.2d 185 (1987), and that the only federal appellate court to have been presented with a similar issue has held that RICO claims survive a plaintiff’s death, because the “primary purpose” of RICO is remedial. Plaintiffs’ Opposition, at 38 (citing Faircloth v. Finesod, 938 F.2d 513, 518 (4th Cir.1991)). The plaintiffs also point out that numerous district courts “have concluded that a civil RICO suit is remedial, not penal, and accordingly survives the death of a party.” Id. (quoting United States v. Private Sanitation Indus. Assoc, of Nassau/Suffolk, 159 F.R.D. 389, 390 (E.D.N.Y.1994) (collecting eases)). Recognizing the split of authority on the question, compare Confederation Life Ins. Co. v. Goodman, 842 F.Supp. 836, 838 (E.D.Pa.1994) with County of Oakland v. Detroit, 784 F.Supp. 1275, 1285 (E.D.Mich. 1992), the Court is persuaded that a civil RICO suit survives the death of a defendant. Although the treble damages provisions of a civil RICO suit may suggest a punitive element, the overriding purpose of RICO is to provide a remedy to persons injured as a result of racketeering activity. E.g., McMahon, 482 U.S. at 240, 107 S.Ct. at 2344-45; Faircloth, 938 F.2d at 518. The statute itself illustrates Congress’s general intent: “the provisions of this title shall be liberally construed to effectuate its remedial purpose.” Pub.L. No. 91-452, § 904(a), Title IX, 84 Stat. 947, reprinted in 18 U.S.C.A § 1961 note (emphasis added). Significantly, civil RICO recovery runs to a private individual, and the mere inclusion of treble damages within a statutory scheme does not operate to make it punitive. See Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 635, 105 S.Ct. 3346, 3358, 87 L.Ed.2d 444 (1985) (purpose of treble damages provisions in Clayton Act is primarily compensatory). The principal case upon which the defendants rely is neither controlling nor persuasive. While the Genty court concluded that the treble damages provisions of RICO were punitive in a case involving potential municipal liability where actual damages were easily calculated, 937" }, { "docid": "17331434", "title": "", "text": "that courts have found acceptable agreements to arbitrate antitrust claims entered into after the dispute arose. Third, it rejected “the proposition, that an arbitration panel will pose too great a danger of innate hostility to the constraint on business conduct that antitrust law imposes.” Id. 473 U.S. at 634, 105 S.Ct. at 3358. It then turned to the final justification, which it considered the core of the American Safety doctrine: “the fundamental importance to American democratic capitalism of the regime of the antitrust laws.” Id. It found no reason to assume at the outset of the dispute that international arbitration would not provide an adequate mechanism for resolution. After examining the legislative intent behind § 4 of the Clayton Act, the Court emphasized that the primary function of the treble-damages cause of action was compensatory. “And so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum,” the Court concluded, “the statute will continue to serve both its remedial and deterrent function.” Id. at 637, 105 S.Ct. at 3360; see also, Shearson/American Express v. McMahon (1987) — U.S. -, 107 S.Ct. 2332, 2344-45, 96 L.Ed.2d 185. Although the holding of Mitsubishi was limited to international transactions, we believe that this reasoning would apply with equal force in the domestic context. Shortly after the Mitsubishi decision, the Second Circuit found the reasoning of American Safety still sufficiently viable to support a holding that claims brought pursuant to the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1962(c) (1982) (“RICO”) are non-arbitrable. McMahon v. Shearson/American Express, Inc. (2d Cir.1986) 788 F.2d 94, rev’d sub nom. Shearson/American Express v. McMahon (1987), — U.S. -, 107 S.Ct. 2332, 96 L.Ed.2d 185. Judge Timbers there found that the public policy concerns inherent in the enforcement of the RICO laws were comparable to the national interest in a competitive economy recognized in American Safety, and that, like antitrust claims, RICO claims were particularly unsuited to arbitral resolution. Judge Timbers specifically noted that the reasoning of American Safety “was not disputed in Mitsubishi, as applied to agreements to arbitrate arising" }, { "docid": "22726727", "title": "", "text": "Co., supra, we rejected the view that § 1964(c) “provide [s] civil remedies for offenses criminal in nature.” See 473 U. S., at 492. In doing so, this Court observed: “[T]he fact that conduct can result in both criminal liability and treble damages does not mean that there is not a bona fide civil action. The familiar provisions for both criminal liability and treble damages under the antitrust laws indicate as much.” Ibid. Mitsubishi recognized that treble-damages suits for claims arising under § 1 of the Sherman Act may be subject to arbitration, even though such conduct may also give rise to claims of criminal liability. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., supra. We similarly find that the criminal provisions of RICO do not preclude arbitration of bona fide civil actions brought under § 1964(c). The McMahons’ final argument is that the public interest in the enforcement of RICO precludes its submission to arbitration. Mitsubishi again is relevant to the question. In that case we thoroughly examined the legislative intent behind § 4 of the Clayton Act in assaying whether the importance of the private treble-damages remedy in enforcing the antitrust laws precluded arbitration of § 4 claims. We found that “[notwithstanding its important incidental policing function, the treble-damages cause of action . . . seeks primarily to enable an injured competitor to gain compensation for that injury.” 473 U. S., at 635. Emphasizing the priority of the compensatory function of § 4 over its deterrent function, Mitsubishi concluded that “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.” Id., at 637. The legislative history of § 1964(c) reveals the same emphasis on the remedial role of the treble-damages provision. In introducing the treble-damages provision to the House Judiciary Committee, Representative Steiger stressed that “those who have been wronged by organized crime should at least be given access to a legal remedy.” Hearings on S. 30 and Related Proposals before Subcommittee No. 5 of the House Committee" }, { "docid": "21459241", "title": "", "text": "Rodriguez inapplicable to Title VII. The Supreme Court has. recognized an inherent tension between mandatory arbitration and the private attorney general function normally fulfilled by plaintiffs who assert statutory, public rights claims. In each of the leading eases on the arbitrátion of statutory claims, the Court reasoned that the relevant statutory provisions had compensation as' their primary purpose, not the vindication of public rights. Thus, in Mitsubishi, the Court explained that the anti-trust law’s treble damages provision “seeks primarily to enable an injured competitor to gain compensation for that injury.” Mitsubishi, 473 U.S. at 635. It is “in essence a remedial provision,” for the benefit of “individuals.” Id. at 635-636 (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 485-486, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)); 21 Cong. Rec, 1767-1768 (1890). The “policing function,” although “important,” is “incidental.” Id. 473 U.S. at 635. The Court reiterated this interpretation of statutory priorities in McMahon, with regard to both the Securities Exchange Act and RICO. The legislative history of the Securities and Exchange Act, it held, revealed that Congress had “focus[ed] on the remedial function” of that act’s treble damages provision, while “[t]he policing function ..., although important, was a secondary concern.” McMahon, 482 U.S. at 240-241. “The private attorney general role for the typical RICO plaintiff,” the Court found, was even “less plausible ____” Id. at 242. In contrast, the Civil Rights Act of 1991 reaffirmed that the typical plaintiff’s private attorney general role is more than plausible; it is essential. What is not plausible is that the same Act would have nonetheless undermined that role by endorsing private mandatory pre-dispute arbitration agreements, c. The creation of a right to a jury trial It is similarly unlikely that the same Congress would in a single act create a new constitutionally-based right to a jury trial for Title VII plaintiffs, only to erode that right by endorsing mandatory pre-dispute arbitration agreements. Before the passage of the 1991 Civil Rights Act, most courts had con- eluded that Title VII plaintiffs had no right to a jury trial. See, e.g., CIR v. Schleier," }, { "docid": "22666420", "title": "", "text": "the private cause of action plays a central role in enforcing this regime. See, e. g., Hawaii v. Standard Oil Co., 405 U. S. 251, 262 (1972). As the Court of Appeals pointed out: “ ‘A claim under the antitrust laws is not merely a private matter. The Sherman Act is designed to promote the national interest in a competitive economy; thus, the plaintiff asserting his rights under the Act has been likened to a private attorney-general who protects the public’s interest.’” 723 F. 2d, at 168, quoting American Safety, 391 F. 2d, at 826. The treble-damages provision wielded by the private litigant is a chief tool in the antitrust enforcement scheme, posing a crucial deterrent to potential violators. See, e. g., Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 138-139 (1968). Thé importance of the private damages remedy, however, does not compel the conclusion that it may not be sought outside an American court. Notwithstanding its important incidental policing function, the treble-damages cause of action conferred on private parties by §4 of the Clayton Act, 15 U. S. C. § 15, and pursued by Soler here by way of its third counterclaim, seeks primarily to enable an injured competitor to gain compensation for that injury. “Section 4 ... is in essence a remedial provision. It provides treble damages to ‘[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . .’ Of course, treble damages also play an important role in penalizing wrongdoers and deterring wrongdoing, as we also have frequently observed. ... It nevertheless is true that the treble-damages provision, which makes awards available only to injured parties, and measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485-486 (1977). After examining the respective legislative histories, the Court in Brunswick recognized that when first enacted in 1890 as §7 of the Sherman Act, 26 Stat. 210, the treble-damages provision “was conceived of primarily as" }, { "docid": "22059846", "title": "", "text": "Congress knows how we construe statutes and expects us to run true to form”); cf. eBay, Inc. v. MercExchange, L.L.C., — U.S. -, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006) (“Nothing in the Patent Act indicates that Congress intended ... a departure [from the traditions of equity in granting injunctions]. To the contrary, the Patent Act expressly provides that injunctions ‘may’ issue ‘in accordance with the principles of equity.’ ”). We should take this opportunity to bring patent law regarding damages into the mainstream of the general law and avoid the necessity of carving a special niche for the realm of patent law. It is also important to note several other contexts in which enhanced damages allowed by statute have a remedial purpose. See, e.g., 15 U.S.C. § 1117(a) (discretionary award of up to three times actual damages “shall constitute compensation and not a penalty”); Cook County v. United States, 538 U.S. 119, 130, 123 S.Ct. 1239, 155 L.Ed.2d 247 (2003) (“To begin with it is important to realize that treble damages have a compensatory side, serving remedial purposes in addition to punitive objectives .... While the tipping point between pay-back and punishment defies general formulation, being dependent on the workings of a particular statute and the course of particular litigation, the facts about the FCA show that the damages multiplier has compensatory traits along with the punitive.”); Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 151, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) (“Both RICO and the Clayton Act are designed to remedy economic injury by providing for the recovery of treble damages, costs, and attorney’s fees.”); Am. Soc’y of Mech. Eng’rs v. Hydrolevel Corp., 456 U.S. 556, 575, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) (“It is true that antitrust treble damages were designed in part to punish past violations of the antitrust laws.... But treble damages were also designed to deter future antitrust violations .... Moreover, the antitrust private action was created primarily as a remedy for the victims of antitrust violations.”); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-86, 97" }, { "docid": "13621118", "title": "", "text": "detailed reference to RICO’s legislative history. They note Congress’ intent that “those who have been wronged by organized crime should at least be given access to a legal remedy.... It is the intent of this body ... to see that innocent parties ... have a right to obtain proper redress_” Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 241, 107 S.Ct. 2332, 2345, 96 L.Ed.2d 185 (1987) (citing legislative history of RICO treble-damages provision). Appellants further contend that the RICO venue provision, 18 U.S.C. § 1965(a), was intended to be the same as that in the Clayton Act. Br. for appellants at 28 (citing H.Rep.No. 1549, 91st Cong., 2d. Sess. 58 (1970)), U.S. Code Cong. & AdmimNews 1970, 4007. From these excerpts of legislative history, the appellants then apply the method of analogy. They argue that, as in the case of the federal antitrust statutes, RICO is an effort to set forth a national policy to deal with a national threat to the commerce of the United States, and that private suits under the RICO statute are an integral part of Congress’ RICO enforcement scheme. Agency Holding Corp. v. Malley-Duff & Assoc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987); Sedima, S.P. R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Appellants further contend that the treble damages provision of RICO, in addition to being remedial, was meant to be a deterrent and penalty. See Sedima, 473 U.S. at 498-99, 105 S.Ct. at 3285-86. From that they ask us to draw the conclusion that relegating a private RICO plaintiff to a foreign court, in addition to eliminating the remedy, negates the penalty and deterrent imposed by Congress and frustrates the overall national enforcement scheme of RICO legislation. Finally, to drive home their point, they suggest that these are exactly the results this Court sought to avoid in Mitsui by rejecting application of the forum non con-veniens doctrine in the antitrust context. B. Appellees respond, noting that the Supreme Court’s recent analysis in Shear-son/American Express, exposes some of the weaknesses of this argument. There" }, { "docid": "22254876", "title": "", "text": "they may have sustained to the market value of their homes by calculating the difference between their financial investment in their homes and the market value as a result of the toxicity of the nearby dump. Presented with a reliable means of determining actual harm, assessing treble damages against the municipality, thus, would impose punitive damages upon the innocent taxpayers in favor of the plaintiffs who already may have recourse for their full compensation in a non-RICO cause of action against the municipality and a RICO action against the municipal officers themselves. Indeed, in several respects the scenario of this alleged RICO racket ease demonstrates how far afield we have wandered from the “heartland” of Congress’ initial intention for RICO actions. Instead of elements of organized crime being on trial, here it is the public. Instead of gross malfeasance or violent crimes as the underlying predicate offenses, the primary charge against the Township is merely an alleged failure to provide information to prospective home purchasers. Finally, the information alleged to have been fraudulently withheld by the Township pertaining to a visible landfill is information that appears to have been readily obtainable upon inquiry, inspection, or investigation. To be sure, Congress intended section 1964(c) in part to compensate innocent victims. See Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 240-41, 107 S.Ct. 2332, 2344-45, 96 L.Ed.2d 185 (1987). However, bearing in mind the strong weight of authority which supports the characterization of treble damages as punitive, we hold that RICO’s overall purpose to thwart the generalized harm wrought by racketeering activity, its dependence on statutory crimes, and the mandatory provision for treble damages are sufficient evidence of Congress’ intention that the treble damages provision serve a predominantly punitive purpose. Although treble damages necessarily compensate the immediate RICO victim, the prevailing punitive nature of section 1964(c)’s compulsory award of treble damages convinces us that Congress, in keeping with the common law, did not intend to subject municipal corporations to RICO liability. Courts will not interpret statutes to overturn well-established common law principles unless Congress so authorizes. See Will v. Michigan Dep’t of" }, { "docid": "19538759", "title": "", "text": "1964(c)imposes on access to relief is an injury to one's \"business or property.\" Nothing in that condition should change the extraterritoriality assessment. In agreement with the Second Circuit, I would hold that \"[i]f an injury abroad was proximately caused by the violation of a statute which Congress intended should apply to injurious conduct performed abroad, [there is] no reason to import a domestic injury requirement simply because the victim sought redress through the RICO statute.\" 764 F.3d 149, 151 (2014). What § 1964(c)'s text conveys is confirmed by its history. As this Court has repeatedly observed, Congress modeled § 1964(c)on § 4 of the Clayton Act, 15 U.S.C. § 15, the private civil-action provision of the federal antitrust laws, which employs nearly identical language: \"[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor.\" See Klehr v. A.O. Smith Corp., 521 U.S. 179, 189-190, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997); Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 267-268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992); Sedima, 473 U.S., at 485, 489, 105 S.Ct. 3275. Clayton Act § 4, the Court has held, provides a remedy for injuries both foreign and domestic. Pfizer Inc. v. Government of India, 434 U.S. 308, 313-314, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978)(\"Congress did not intend to make the [Clayton Act's] treble-damages remedy available only to consumers in our own country.\"); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 707-708, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962)(allowing recovery in Clayton Act § 4 suit for injuries in Canada). \"The similarity of language in [the two statutes] is, of course, a strong indication that [they] should be interpreted pari passu, \" Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973)(per curiam ), and I see no contradictory indication here. Indeed, when the Court has addressed gaps in § 1964(c), it has aligned the RICO private right of action with the private right afforded by Clayton" }, { "docid": "20871150", "title": "", "text": "U.S. at 267, 101 S.Ct. at 2760, punishment by punitive damages would be inequitably assessed against the public. Moreover, “the deterrence rationale of § 1983 does not justify making punitive damages available against municipalities.” Id. at 268, 101 S.Ct. at 2760. City of Newport held that, to overcome municipal immunity from punitive damages, Congress must clearly express its intention. Id. at 263, 101 S.Ct. at 2749. No such clear intent to overcome governmental immunity appears in the RICO provision for treble damages. GRG, however, fastens hope on the Supreme Court’s ambiguity about treble damages, “which have a compensatory side, serving remedial purposes in addition to punitive objectives.” Cook Cnty., Ill. v. U.S. ex rel. Chandler, 538 U.S. 119, 130, 123 S.Ct. 1239, 1246, 155 L.Ed.2d 247 (2003). The Supreme Court locates “different statutory treble-damages provisions on different points along the spectrum between purely compensatory and strictly punitive awards.” PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 405, 123 S.Ct. 1531, 1535, 155 L.Ed.2d 578 (2003). Treble damages provisions designedly go well beyond the amount of actual harm, but the Supreme Court has “repeatedly acknowledged that the treble-damages provision contained in RICO itself is remedial in nature.” PacifiCare, 538 U.S. at 406, 123 S.Ct. at 1535. The Court’s ambivalence about punitive damages complicates analysis here, but we believe PacifiCare cannot salvage a claim against HISD. First, the Supreme Court’s characterization of RICO treble damages as “remedial” in PacifiCare cannot substitute for an express Congressional abrogation of municipal immunity from treble damages, which, whatever the characterization, exceed actual provable damages. To hold otherwise would mock City of Newport. Second, nothing in PacifiCare contravenes the Court’s earlier holdings that treble-damages provisions serve both compensatory and punitive functions. See Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 240, 107 S.Ct. 2332, 2345, 96 L.Ed.2d 185 (1987); accord Genty, 937 F.2d at 910 (“there is convincing authority that Congress authorized civil RICO’s powerful treble damages provision to serve a punitive purpose”). Third, the narrow question posed in PacifiCare was whether an arbitration agreement’s ban on punitive damages included RICO treble damages. The Court refused" }, { "docid": "22254877", "title": "", "text": "the Township pertaining to a visible landfill is information that appears to have been readily obtainable upon inquiry, inspection, or investigation. To be sure, Congress intended section 1964(c) in part to compensate innocent victims. See Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 240-41, 107 S.Ct. 2332, 2344-45, 96 L.Ed.2d 185 (1987). However, bearing in mind the strong weight of authority which supports the characterization of treble damages as punitive, we hold that RICO’s overall purpose to thwart the generalized harm wrought by racketeering activity, its dependence on statutory crimes, and the mandatory provision for treble damages are sufficient evidence of Congress’ intention that the treble damages provision serve a predominantly punitive purpose. Although treble damages necessarily compensate the immediate RICO victim, the prevailing punitive nature of section 1964(c)’s compulsory award of treble damages convinces us that Congress, in keeping with the common law, did not intend to subject municipal corporations to RICO liability. Courts will not interpret statutes to overturn well-established common law principles unless Congress so authorizes. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 67, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) (holding that Congress in passing the civil rights act did not intend to override well-established common law immunities and defenses); Newport, 453 U.S. at 266, 101 S.Ct. at 2759 (finding no evidence that Congress intended to disturb the settled common-law municipal immunity from punitive damages). Whereas in other statutes Congress expressly provided that Government entities shall be held civilly liable for criminal activities, such as under the federal securities laws, see 15 U.S.C. § 77b(2), the RICO statute expresses no specific intention that municipalities be liable for treble damages. The argument advanced by the Gentys that a district court could in its discretion award only compensatory damages against a municipality under section 1964(c) does not convince us that a RICO claim should lie against the Township. It is clear that trial courts and juries are at no liberty under RICO to award any amount less than treble damages. The plain language of that statute instructs that injured persons “shall recover” treble" } ]

[ { "docid": "5515612", "title": "", "text": "they have expenses “away from home” ? The issue whether all or part of the expenses so incurred were capital expenditures is not raised or argued and we do not pass judgment on such question. Neither are the travel and legal expenses incurred by the petitioners in their attempt to find and purchase a business deductible under section 23 (a) (2), Internal Revenue Code., which allows the deduction of expenses incurred in the production or collection of income or in the management, conservation, or maintenance of property held for the production of income. There is a basic distinction between allowing deductions for the expense of producing or collecting income, in which one has an existent interest or right, and expenses incurred in an attempt to obtain income by the creation of some new interest. Marion A. Burt Beck, 15 T. C. 642, affd. 194 F. 2d 537. Stella Elkins Tyler, 6 T. C. 135. The expenses here involved are of the latter classification. The traveling costs were incurred in an endeavor to acquire a business which might, in the future, prove productive of income. It might reasonably be said that petitioners were engaged in the active search of employment as newspaper owners, but that cannot be regarded as a business. It is much like the situation obtaining in Mort L. Bixler, 5 B. T. A. 1181, or like that found in McDonald v. Commissioner, 323 U. S. 57, where it was held that a Pennsylvania court of common pleas judge seeking reelection could not deduct under section 23 (a) (2) expenses of such campaign. The Supreme Court said “* * * his campaign contributions were not expenses incurred in being a judge but in trying to be a judge for the next ten years.” The petitioners contend finally that the expenses in question must be allowed as deductions as nonbusiness losses under section 23 (e) (2), Internal Eevenue Code. This subsection of the Code provides a deduction for losses incurred in transactions entered into for profit. The only transaction entered into for profit by the petitioners, as disclosed by the" } ]

[ { "docid": "11033803", "title": "", "text": "case, however, there was no such existing trade or business. The research and experimentation was no doubt in anticipation of the organizing of a business to make business use of an end product when it reached the point of commercial acceptability. At the time the invention was bought by petitioner, however, it was in a preliminary laboratory state, and petitioner entered into the so-called Development Contract in part, at least, to get the benefit of research specialists. He went no further than this in 1955, however. It is our view that this activity was preliminary to the coming into existence of a business, and did not reach the stage of an existing business in the year in question within the meaning of section 174(a)(1). The research and development expenditures could not be “in connection with” a business which did not exist. It is clear that the statutory phrase “trade or business” presupposes an existing business with which the taxpayer is directly connected. Expenditures made in investigating a potential new trade or business, or preparatory to entering into such business, do not, in our opinion, qualify for the application of section 174(a) (1). The principle is recognized in our repeated disallowance of such expenditures. See Dwight A. Ward, 20 T.C. 332, 343 (1953), affirmed on another issue 224 F. 2d 547 (C.A. 9,1955); George O. Westervelt, 8 T.C. 1248, 1254 (1947); Henry G. Owen, 23 T.C. 377, 381 (1954); Morton Frank, 20 T.C. 511, 513-514 (1953); Eugene H. Walet, Jr., 31 T.C. 461, 471 (1958), affd. 272 F. 2d 694 (C.A. 5, 1959). See also McDonald v. Commissioner, 323 U.S. 57 (1944). In the light of the foregoing discussion, it is our view that the research and experimental expenditures in issue were not paid or incurred by petitioner during the taxable year in question in connection with an existing trade or business and that petitioner has not established that he is entitled to the benefits of section 174(a) (1). No issue has been raised under section 174(b). Assuming arguendo (although we have held otherwise, supra) that petitioner is entitled to treat" }, { "docid": "2844551", "title": "", "text": "not say, as the government urges, that the seller reacquired and resold the stock to conclude that what occurred was in substance and reality an equitable revision of the original terms of sale. Thus, the counsel fee in question was, to one in the seller’s position, an expense of modifying terms of sale, incurred as an essential incident of a capital transaction in the disposition of property. Our problem is to decide whether it is the kind of selling expense which must be capitalized, and the “collection” cases do not help us. In rationalizing such capitalization and the restriction it imposes on the deduction of expenses under Section 212 (1), courts have relied greatly upon the treatment which has long been accorded equivalent language in the much older provision, now Section 162 of the 1954 Internal Revenue Code, 26 U.S.C.A. § 162, authorising the deduction of ordinary and necessary business expenses. It is now authoritatively established that the two sections are in pari materia. Bingham’s Trust v. Commissioner, 1945, 325 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670; McDonald v. Commissioner, 1944, 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed. 68. Accordingly, it has been reasoned that in those situations where the capitalization of business selling expenses is a long established and accepted requirement, despite Section 162, equivalent or closely analogous nonbusiness expense must also be capitalized and used only as an offset to capital gain, despite Section 212 (1). On this basis, selling commissions, required to be capitalized in the regulations concerning the deduction of business expenses, C.F.R., 1960, § 1.263 (a)-2(e), but not mentioned at all in the regulations under Section 212, are equally deductible in both situations. Davis v. Commissioner, 8 Cir., 1945, 151 F.2d 441, applying to a commission paid for a nonbusiness sale, the rule of Spreckels v. Commissioner, 1942, 315 U.S. 626, 62 S.Ct. 777, 86 L.Ed. 1073, a business expense case. This concept also embraces fees paid to lawyers for negotiating sales. Dwight A. Ward, 1953, 20 T.C. 332. Similar treatment has been accorded expenses of a seller for revenue stamps and title" }, { "docid": "9825695", "title": "", "text": "v. Flowers, 326 U.S. 465, 473-474 (1946); Heuer v. Commissioner, 32 T.C. 947, 951-952 (1959), affd. per curiam 283 F.2d 865 (5th Cir. 1960). Expenses incurred on trips between two places of business, however, may be deductible. Steinhort v. Commissioner, 335 F.2d 496, 503-504 (5th Cir. 1964), affg. and remanding a Memorandum Opinion of this Court; Heuer v. Commissioner, supra at 953. Petitioner made his trips from his home office (which we have held to be the principal place of business with respect to his rental activities) to his rental properties for a business purpose, i.e., to carry out management duties at those properties. We see no reason why the rule that local transportation expenses incurred in travel between one business location and another are deductible should not be equally applicable where the taxpayer’s principal place of business with respect to the activities involved is his residence. Hulme v. United States, an unreported case (N.D. Cal. 1965, 16 AFTR 2d 5084, 1965-2 USTC par. 9499). The fact that, under such circumstances, a taxpayer has no commuting expenses because his office is in his home, should not render nondeductible transportation costs which are otherwise ordinary and necessary expenses incurred in pursuit of his business. Respondent’s reliance on Smith v. Warren, 388 F.2d 671 (9th Cir. 1968), Green v. Commissioner, 59 T.C. 456 (1972), and Mazzotta v. Commissioner, 57 T.C. 427 (1971), affd. per curiam 465 F.2d 1399 (2d Cir. 1972), is misplaced; they are distinguishable from the instant case because in each of those cases the taxpayer, who maintained an office in his residence which was not his major place of employment, traveled from his principal place of business to his residence for a primarily personal reason — to be at home each evening. Thus, expenses incurred in travel between the place of employment and the home were held to be personal and nondeductible. In contrast, the petitioner herein was motivated by purely business reasons to travel locally between his principal place of business to another business location in carrying on his rental activities. We think that in such a situation" }, { "docid": "11064982", "title": "", "text": "litigation expenses were incurred. Therefore, it is the nature of the 1964 case which, we think, controls the disposition of this issue. The California cases decided in 1959, prior to the taxable period in question, are deemed relevant to the present inquiry only to the extent they may reflect upon the nature and background of the 1964 decision. We are persuaded, based upon our careful examination of such case, that the litigation expenses attributable thereto must be characterized as either the cost of defending or perfecting title to property, or as a personal expense. In either case the costs of litigation are not currently deductible. The law applicable to the instant controversy is generally well settled. The cost of defending or perfecting title to property is treated as a capital expenditure within the meaning of section 263, and hence is not deductible. Sec. 1.263(a)-2(c), Income Tax Kegs.; Farmer v. Commissioner, 126 F. 2d 542 (C.A. 10, 1942), affirming on this issue sub nom. Central Material & Supply Co., 44 B.T.A. 282 (1941); Jones Estate v. Commissioner, 127 F. 2d 231 (C.A. 5, 1942), affirming 43 B.T.A. 691 (1941); Porter Royalty Pool, Inc., 7 T.C. 685 (1946), affd. 165 F. 2d 933 (C.A. 6, 1948), certiorari denied 334 U.S. 833 (1948). Moreover, expenditures in connection witih unsuccessful litigation to establish an interest in property constitute a nondeductible personal expense. Marion A. Burt Beck, 15 T.C. 642 (1950), affirmed per curiam 194 F. 2d 537 (C.A. 2, 1952), certiorari denied 344 U.S. 821 (1952). The specific action in the 1964 case, described above, appears on its face to have been brought by petitioner for the primary purpose of reclaiming title to the mining claims deeded in 1951 to Molybdenum, on the ground that the agreement was void. Unlike the 1959 cases which involved principally petitioner’s entitlement to royalties under the agreement and peripherally the determination of the validity of petitioner’s title to the claims in question at the time of sale, the 1964 litigation involved as its principal issue the adjudication of present title to the mining claims. While the 1959 litigation" }, { "docid": "14210008", "title": "", "text": "a merger in a strict legal sense, since Richmond’s corporate existence was unaffected and there was no sale to Larus of Richmond’s assets. There is no merger merely because one corporation acquires control over another through majority ownership of its stock. General Finance Corporation v. Keystone Credit Corp., 50 F.2d 872 (4th Cir. 1931); 15 Fletcher, Cyclopedia of Corporations (1961 Revised Edition) § 7046, at n. 80. . Hill v. Commissioner of Internal Revenue, 181 F.2d 906, 908 (4th Cir. 1950) ; Mertens, Law of Federal Income Taxation, Code Commentary Volume, p. 152. . Of course, expenses incurred prior to and for the purpose of reaching a deeision whether to establish a business are indisputably capital expenditures. See Westervelt v. Commissioner of Internal Revenue, 8 T.C. 1248 (1947); Frank v. Commissioner of Internal Revenue, 20 T.C. 511 (1953) ; Mid-State Products v. Commissioner of Internal Revenue, 21 T.C. 696 (1954); and Walet, Jr. v. Commissioner of Internal Revenue, 31 T.C. 461 (1958), aff’d per curiam, 272 F.2d 694 (5th Cir. 1959). See also Fleischer, “The Tax Treatment of Expenses Incurred in Investigation for a Business or Capital Investment,” 14 Tax L.Rev. 567 (1959). . The parties in the case at bar agree that the tax consequences of the $25,000 lump sum reimbursement to Larus and the subsequent payments totalling $27,000 are indistinguishable. Furthermore, the record does not suggest that the $25,000 was paid for some other purpose in addition to reimbursement. To the extent, however, that it may have been in consideration of Larus’ promise to withdraw its application, it would constitute a capital expenditure. KWTX, supra; Houston Natural Gas Corp. v. Commissioner of Internal Revenue, 90 F.2d 814, 816 (4th Cir. 1937), cert. denied, 302 U.S. 722, 58 S.Ct. 43, 82 L.Ed. 557 (1937); 4 Mertens, Law of Federal Income Taxation, § 25.37, p. 131. . Southeastern Express Co., 19 B.T.A. 490 (1930), the only authority contra, has not been followed or even mentioned in later Tax Court cases. . Compare concurring opinion of Mr. Justice Frankfurter, Deputy v. DuPont, 308 U.S. 498, 499, 60 S.Ct. 363, 369, 84" }, { "docid": "3355311", "title": "", "text": "found by the court, from withdrawing her objection to the renewal and retaining her stock. Thus, a sale of the stock might not have taken place.” 49 T.C. 377, 386 at n. 2 (1968). Assuming arguendo the validity of petitioners’ premise, however, the conclusion they reach does not follow. There are several cases concerning litigation expenses incurred by the holder of equitable title of property to perfect his legal title. See Spangler v. Commissioner of Internal Revenue, supra at 920, notes 16, 17. The authorities differ on whether these costs are deductible expenses or capital expenditures. Contrast Allen v. Selig, 200 F.2d 487 (5th Cir. 1952) (expenses deductible under predecessor to § 212) with Garrett v. Crenshaw, 196 F.2d 185 (4th Cir. 1952) (capital expenditures). We need not choose one of these divergent views because those cases did not concern the acquisition of property. Rather, the taxpayers were seeking to obtain legal recognition of their title. This purpose was not connected with the original acquisition of the property. What we have here, however, is litigation directly connected with the purchase of property. The expenses were incurred to establish the value of the capital assets acquired and were much like brokerage fees. They were part of the cost of acquisition. Davis v. Commissioner of Internal Revenue, 151 F.2d 441 (8th Cir. 1945), cert. denied, 327 U.S. 783, 66 S.Ct. 682, 90 L.Ed. 1010 (1946). And see Johnson & Co. v. United States, 149 F.2d 851 (2d Cir. 1945). This case may best be viewed against the historical background of the provision under which the deduction is claimed. Prior to the 1942 amendments to the Internal Revenue Code of 1939, expenses incurred for the production of income which could not meet the strict standards of “business” expenses were not deductible from gross income. Higgins v. Commissioner of Internal Revenue, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783 (1941); 4A Mertens § 25A.01 (1966). To remedy this situation Congress enacted § 23(a) (2) of the Code. Section 212 of the Internal Revenue Code of 1954, set forth above, adopted the essential provisions" }, { "docid": "7779427", "title": "", "text": "management, conservation or maintenance of investment property. The statutory language states specifically that all deductions permitted under § 212 of the Code constitute investment expenses. There is, therefore, no basis for the taxpayers’ claim that only expenses described in § 212(1) are includable within the definition of investment expenses. By referring to § 212 in its entirety, § 57(b)(2)(C) does not differentiate between the production of income, on the one hand, and the maintenance and the conservation of income-producing property, on the other hand. By including within the scope of investment expenses items such as state and local property taxes deductible under § 164(a)(1) and (a)(2) of the Code — which can only be described as expenses relating to the maintenance and conservation of property — § 57(b)(2)(C) makes clear the congressional intention to treat production and conservation expenses equally in determining “investment expenses” for purposes of calculating a taxpayer’s minimum tax liability. By describing investment expenses in § 57(b)(2)(C) as those “directly connected with the production of investment income,” Congress was not fashioning a distinction between the production of investment income, on the one hand, and the conservation of income-producing investment property, on the other. As explained by the Senate Report accompanying the enactment of the minimum tax provisions in 1969, the definitions relating to investment income and expenses were designed to differentiate “investment” activities from “trade or business” activities for purposes of the minimum tax. See S.Rep.No.91-552, supra at 113-14 (1969-3 C.B. at 496), [1969] U.S. Code Cong. & Admin.News at 2144. In Trust of Bingham v. Commissioner, supra, the issue was whether legal expenses incurred for the management and conservation of income producing property were deductible as expenses “for the production of income” within the meaning of § 23(a)(2), of the 1939 Code, the predecessor of § 212 of the 1954 Code. After noting that the scope of the deduction for investment expenses was “comparable and in pari materia” to the deduction for trade or business expenses, 325 U.S. at 373, 65 S.Ct. at 1237, the Court held that expenses incurred for the management and conservation of" }, { "docid": "11666989", "title": "", "text": "taxpayer and cannot be transferred to another. New Colonial Ice Co. v. Helvering, 292 U.S. 435 (1934). Moreover, the burden of proving that he sustained such a loss is on the taxpayer. Burnet v. Houston, 283 U.S. 223 (1931). Usually, payments made by a shareholder to his corporation or a third person for the benefit of the corporation are neither deductible business expenses of the shareholder nor expenses incurred for the production of income. Wohl v. United States, 267 F. 2d 605 (5th Cir. 1959), cert. denied 361 U.S. 931 (1960); J. K. Downer, 48 T.C. 86, 90 (1967); Bert B. Rand, 35 T.C. 956 (1961); Harry Kahn, 26 T.C. 273 (1956); H. William Ihrig, 26 T.C. 73 (1956); Jacob M. Kaplan, 21 T.C. 134 (1953); Eskimo Pie Corp., 4 T.C. 669, 676 (1945), affd. per curiam 153 F. 2d 301 (3d Cir. 1946). Such payments are treated as contributions to capital by the shareholder and must be regarded as an additional cost of his stock. See Wohl v. United States, supra; J. K. Downer, supra; Irving S. Sokol, 25 T.C. 1134 (1956); Eskimo Pie Corp., supra. A deduction is allowable only if the expenditures are made to protect or promote the shareholder’s own trade or business. See James O. Gould, 64 T.C. 132 (1975); James L. Lohrke, 48 T.C. 679 (1967). However, the trade or business of the corporation must be considered separately from the trade or business of the shareholders. See Deputy v. DuPont, 308 U.S. 488 (1940); Burnet v. Clark, 287 U.S. 410 (1932); Dalton v. Bowers, 287 U.S. 404 (1932); Phil L. Hudson, 31 T.C. 574, 583-584 (1958), and the cases cited therein. While the deduction sought here is for a loss and not an expense of the business, the principle is the same. The petitioner spent money to acquire the Top-Mix business, and he claims that part of that money was spent to acquire a covenant not to compete. However, the primary beneficiary of any such covenant would have been Top-Mix. If any loss was sustained when Mr. Harrell started his new ready-mix concrete business," }, { "docid": "11064983", "title": "", "text": "Commissioner, 127 F. 2d 231 (C.A. 5, 1942), affirming 43 B.T.A. 691 (1941); Porter Royalty Pool, Inc., 7 T.C. 685 (1946), affd. 165 F. 2d 933 (C.A. 6, 1948), certiorari denied 334 U.S. 833 (1948). Moreover, expenditures in connection witih unsuccessful litigation to establish an interest in property constitute a nondeductible personal expense. Marion A. Burt Beck, 15 T.C. 642 (1950), affirmed per curiam 194 F. 2d 537 (C.A. 2, 1952), certiorari denied 344 U.S. 821 (1952). The specific action in the 1964 case, described above, appears on its face to have been brought by petitioner for the primary purpose of reclaiming title to the mining claims deeded in 1951 to Molybdenum, on the ground that the agreement was void. Unlike the 1959 cases which involved principally petitioner’s entitlement to royalties under the agreement and peripherally the determination of the validity of petitioner’s title to the claims in question at the time of sale, the 1964 litigation involved as its principal issue the adjudication of present title to the mining claims. While the 1959 litigation may arguably fall within the category of expenses deductible under section 212, as having been incurred for the production of income (see, e.g., Pierce Estates, Inc., 3 T.C. 875 (1944)), the 1964 case in our view must be regarded purely as an adjudication of the title to the mining claims. As such, legal expenses incurred in its unsuccessful prosecution by petitioner are personal expenditures and thus are not deductible. Marion A. Burt Beck, supra. We consider this conclusion unaffected by petitioner’s inclusion in his 1964 action of a request for an accounting and for damages. Petitioner’s right to receive an accounting or damages was wholly dependent upon and incident to the resolution of the primary issue, viz, the determination of title, and it is clear that the litigation concerned exclusively this issue. The request for accounting and damages attending petitioner’s attempt to recover title to property formerly deeded to another cannot, under the circumstances of this case, vary the fundamental character of the litigation which was the determination of title. Porter Royalty Pool, Inc., supra;" }, { "docid": "14210007", "title": "", "text": "petitioner or is indeterminate as argued by the respondent. In any event it is clear that the petitioner is not entitled to any deduction in 1953 for amortization of the costs of acquiring a television license.” (Emphasis supplied.) CONCLUSION Because Richmond Television was not in business until it obtained its license and began broadcasting operations, the District Court erred in permitting the jury to answer any of the issues pertaining to section 162(a) or section 167(a) (1). The judgment of the District Court entered upon the jury’s findings must therefore be Reversed and judgment entered for the United States. . The taxpayer deducted this amount on its 1956 and 1957 income tax returns on account of its claimed right to carry over net operating losses from the taxable years 1953 through 1955. The right to these 1956 and 1957 deductions thus depends on the deductibility of the expenditures in the taxable years 1953 through 1955, the years in which they were originally claimed. . Although thus referred to at the trial, the agreement was not a merger in a strict legal sense, since Richmond’s corporate existence was unaffected and there was no sale to Larus of Richmond’s assets. There is no merger merely because one corporation acquires control over another through majority ownership of its stock. General Finance Corporation v. Keystone Credit Corp., 50 F.2d 872 (4th Cir. 1931); 15 Fletcher, Cyclopedia of Corporations (1961 Revised Edition) § 7046, at n. 80. . Hill v. Commissioner of Internal Revenue, 181 F.2d 906, 908 (4th Cir. 1950) ; Mertens, Law of Federal Income Taxation, Code Commentary Volume, p. 152. . Of course, expenses incurred prior to and for the purpose of reaching a deeision whether to establish a business are indisputably capital expenditures. See Westervelt v. Commissioner of Internal Revenue, 8 T.C. 1248 (1947); Frank v. Commissioner of Internal Revenue, 20 T.C. 511 (1953) ; Mid-State Products v. Commissioner of Internal Revenue, 21 T.C. 696 (1954); and Walet, Jr. v. Commissioner of Internal Revenue, 31 T.C. 461 (1958), aff’d per curiam, 272 F.2d 694 (5th Cir. 1959). See also Fleischer, “The" }, { "docid": "3355313", "title": "", "text": "of § 23(a) (2) (with additions not pertinent here). After the passage of § 23(a) (2) there was debate over what types of expenditures were deductible under the provision. 4A Mertens § 25A.14, n. 55. See Nahstoll, Non-Trade and Non-Business Expense Deductions, 46 Mich.L.Rev. 1015, 1026 (1948). There was a feeling, which still prevails among some commentators, that the broad definition of a capital expenditure as distinguished from a business expense under § 23(a) (1), the predecessor to § 162 of the 1954 Code, was inapplicable to expenses deductible under § 23(a) (2). Brookes, Litigation Expenses and the Income Tax, 12 Tax L. Rev. 241, 251-63 (1957); McDonald, Deduction of Attorneys’ Fees for Federal Income Tax Purposes, 103 U.Pa.L.Rev. 168, 184-89 (1954); Comment, Federal Income Tax Treatment of Attorneys’ Fees, 40 Tex.L.Rev. 137, 146 (1961). However, it was determined that the two provisions were in pari materia. Trust of Bingham v. Commissioner of Internal Revenue, 325 U.S. 365, 373, 65 S.Ct. 1232, 89 L.Ed. 1670 (1945); Iowa Southern, supra at 386; Munson v. McGinnes, supra at 336; see McDonald v. Commissioner of Internal Revenue, 323 U.S. 57, 62, 65 S.Ct. 96, 89 L.Ed. 68 (1944) and the rule evolved that expenses deductible under § 212 are subject to the same limitations as § 162 expenses except for the “non-business” aspect of the former. Trust of Bingham, supra at 374-375; McDonald v. Commissioner of Internal Revenue, supra at 62; Lucas v. Commissioner of Internal Revenue, 388 F.2d 472, 474 (1st Cir. 1967); Iowa Southern, supra at 386; Spangler v. Commissioner of Internal Revenue, supra at 918; 4A Mertens § 25A.04. In particular, capital expenditures are not deductible under § 212, just as they are not deductible under § 162. Lucas v. Commissioner of Internal Revenue, supra at 474; Spangler v. Commissioner of Internal Revenue, supra, at 918-919; Munson v. McGinnes, supra at 335; 4A Mertens § 25A.14. Setting aside for the moment consideration of the capital aspects of this transaction, it is difficult to comprehend how these expenses were incurred “for the management, conservation, or maintenance of property held for the" }, { "docid": "9825686", "title": "", "text": "And committee reports make clear that deductions under the new section were subject to the same limitations and restrictions that are applicable to those allowable under § 23(a)(1). Further, this Court has said that § 23(a)(2) “is comparable and in pari materia with § 23(a)(1),” providing for a class of deductions “coextensive with the business deductions allowed by § 23(a)(1), except for” the requirement that the income-producing activity qualify as a trade or business. Trust of Bingham v. Commissioner, 325 U.S. 365, 373, 374. [Emphasis, aside from the phrase “in pari materia,” added; fn. ref. omitted.] We think that this articulation of the interplay between sections 23(a)(1) (the predecessor of sec. 162 of the 1954 Code) and 23(a)(2) of the Internal Revenue Code of 1939 (the predecessor of sec. 212 of the 1954 Code) is a clear indication that respondent’s absorption theory is unwarranted. The legislative history of section 23(a)(2) of the 1939 Code reflects an expansive, rather than absorptive, quality. See H. Rept. 2333, 77th Cong., 2d Sess. (1942), 1942-2 C.B. 372, 410, 429-430; S. Rept. 1631, 77th Cong., 2d Sess. (1942), 1942-2 C.B. 504, 570-571. Moreover, in Noble v. Commissioner, 7 T.C. 960 (1946), acq. 1946-2 C.B. 4, this Court specifically recognized that, in respect of rental real estate, expenses were deductible under section 23(a)(1) of the 1939 Code even though, if that section had been found not to be applicable, they would have been deductible under section 23(a)(2) of that Code. (See 7 T.C. at 964.) Given the foregoing, we think respondent’s argument that we should accept his absorption theory, because expenses relating to rental real estate are dealt with in his regulations under section 212 (see sec. 1.212-1(b) and (h), Income Tax Regs.), reflects a bootstrap quality and, as such, is entitled to little, if any, weight in our analysis. Similarly, we find unpersuasive respondent’s attempt, based upon Higgins v. Commissioner, 312 U.S. 212 (1941), to equate an investor in real estate with an investor in stocks and bonds. In that case, the Supreme Court held that it was not erroneous as a matter of law" }, { "docid": "11792541", "title": "", "text": "not to have been incurred in connection with a trade or business so as to be deductible in computing taxable income. Frank v. Commissioner, supra; 4A Mertens, Law of Federal Income Taxation, § 25.08, p. 34; cf. McDonald v. Commissioner of Internal Revenue, 1944, 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed. 68. See generally Fleischer, The Tax Treatment of Expenses Incurred in Investigation for a Business or Capital Investment, 14 Tax L.Rev. 567 (1959). A taxpayer can doubtless engage in the trade or business of doing research and experimentation. There is no inherent reason why inventing new products may not be as much a trade or business as manufacturing, selling, and improving existing products. The question, however, is not merely one of determining whether, as Mr. Stanton says, he was interested in inventing so that he could make money; it is one of determining whether he was engaged in the trade or business of inventing. It has been recognized that this limitation in the statute “does have serious implications in the case of the amateur inventor and the independent financier.” BNA Tax Management Portfolio, Research and Development Expenses, p. 7. Several cases have held that individuals whose activities were similar to Mr. Stanton’s were not engaged in a trade or business. See, e.g., under prior law, Beach v. Shaughnessy, N.D.N.Y., 1954, 126 F.Supp. 771; and under The Internal Revenue Code of 1954, Best Universal Lock Co. v. Commissioner, 1965, 45 T.C. 1. See also Mayrath v. Commissioner, 1964, 41 T.C. 582, aff’d, 5 Cir., 1966, 357 F.2d 209; Schafer v. Commissioner, 1964, 23 T.C.M. 927; Scull v. Commissioner, 1964, 23 T.C.M. 1353. But see Reiner v. Commissioner, 1965, 24 T.C.M. 1005. Taking into account all that Mr. Stanton urges, the expenditures paid by the taxpayers in 1962 and 1963 were not incurred in connection with a trade or business. Mr. Stanton’s inventive efforts in the past as a salaried employee of a corporation do not make inventing his business. His employer’s trade or business may have been inventing, but Mr. Stanton’s occupation (or “business”) was being a corporate employee" }, { "docid": "11792540", "title": "", "text": "profit. * * * The phrase * * * must refer not merely to Acts engaged in for profit, but to extensive activity over a substantial period of time during which the Taxpayer holds himself out as selling goods or services.” McDowell v. Ribicoff, 3 Cir., 1961, 292 F.2d 174, 178 (Biggs, C.J.). A taxpayer can show that his activities are a “business” by demonstrating that he devotes a substantial portion of his time to the activities, Austin v. Commissioner, 1960, 35 T.C. 221, aff’d, 2 Cir., 1962, 298 F.2d 583, or that there has been extensive or repeated activity over a substantial period of time, Wright v. Commissioner, 1959, 31 T.C. 1264, aff’d, 6 Cir., 1960, 274 F.2d 883. The phrase “trade or business” presupposes an existing trade or business. Koons v. Commissioner, 1961, 35 T.C. 1092, 1101; Frank v. Commissioner, 1953, 20 T.C. 511, 514. Thus, expenditures incurred in investigating a potential new trade or business or in preparation for the possibility of entering into a new trade or business have been held not to have been incurred in connection with a trade or business so as to be deductible in computing taxable income. Frank v. Commissioner, supra; 4A Mertens, Law of Federal Income Taxation, § 25.08, p. 34; cf. McDonald v. Commissioner of Internal Revenue, 1944, 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed. 68. See generally Fleischer, The Tax Treatment of Expenses Incurred in Investigation for a Business or Capital Investment, 14 Tax L.Rev. 567 (1959). A taxpayer can doubtless engage in the trade or business of doing research and experimentation. There is no inherent reason why inventing new products may not be as much a trade or business as manufacturing, selling, and improving existing products. The question, however, is not merely one of determining whether, as Mr. Stanton says, he was interested in inventing so that he could make money; it is one of determining whether he was engaged in the trade or business of inventing. It has been recognized that this limitation in the statute “does have serious implications in the case of the" }, { "docid": "8036870", "title": "", "text": "certain expenditures for his wardrobe, laundry and dry cleaning of such attire, haircuts and makeup, hotels and meals, and the operation of his automobile. The resolution of this issue requires us to reconcile the provisions of sections 262 and 162. Section 262 expressly denies a deduction for all “personal, living, or family expenses.” On the other hand, section 162(a) allows a deduction for “all the ordinary and necessary expenses paid or incurred * * * in carrying on any trade or business.” Whether expenditures are for ordinary and necessary business expenses is a question of fact (Commissioner v. Heininger, 320 U.S. 467 (1943)), and the petitioner has the burden of demonstrating that the purpose of the expenditure was primarily business rather than personal and that the business in which the taxpayer is engaged benefited, or was intended to be benefited, by the expenditure. Chapman v. Commissioner, 48 T.C. 358 (1967); Bennett’s Travel Bureau, Inc. v. Commissioner, 29 T.C. 350 (1957). In deciding this issue, we first consider the petitioner’s deductions for the cost of his wardrobe and its maintenance. Although a business wardrobe is a necessary condition of employment, the cost of such wardrobe has generally been considered a nondeductible personal expense within the meaning of section 262. See Kennedy v. Commissioner, 451 F.2d 1023 (3d Cir. 1971), affg. per curiam a Memorandum Opinion of this Court, cert. denied 406 U.S. 920 (1972); Motch v. Commissioner, 11 T.C. 777 (1948), revd. on other issues 180 F.2d 859 (6th Cir. 1950). The general rule of law is that where business clothes are suitable for general wear, a deduction for them is not allowable. See Donnelly v. Commissioner, 262 F.2d 411 (2d Cir. 1959), affg. 28 T.C. 1278 (1957); Roth v. Commissioner, 17 T.C. 1450 (1952); Roberts v. Commissioner, 10 T.C. 581 (1948), affd. on another issue 176 F.2d 221 (9th Cir. 1949); Drill v. Commissioner, 8 T.C. 902 (1947). Such costs are not deductible even when it has been shown that the particular clothes would not have been purchased but for the employment. Stiner v. United States, 524 F.2d 640 (10th" }, { "docid": "3355312", "title": "", "text": "directly connected with the purchase of property. The expenses were incurred to establish the value of the capital assets acquired and were much like brokerage fees. They were part of the cost of acquisition. Davis v. Commissioner of Internal Revenue, 151 F.2d 441 (8th Cir. 1945), cert. denied, 327 U.S. 783, 66 S.Ct. 682, 90 L.Ed. 1010 (1946). And see Johnson & Co. v. United States, 149 F.2d 851 (2d Cir. 1945). This case may best be viewed against the historical background of the provision under which the deduction is claimed. Prior to the 1942 amendments to the Internal Revenue Code of 1939, expenses incurred for the production of income which could not meet the strict standards of “business” expenses were not deductible from gross income. Higgins v. Commissioner of Internal Revenue, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783 (1941); 4A Mertens § 25A.01 (1966). To remedy this situation Congress enacted § 23(a) (2) of the Code. Section 212 of the Internal Revenue Code of 1954, set forth above, adopted the essential provisions of § 23(a) (2) (with additions not pertinent here). After the passage of § 23(a) (2) there was debate over what types of expenditures were deductible under the provision. 4A Mertens § 25A.14, n. 55. See Nahstoll, Non-Trade and Non-Business Expense Deductions, 46 Mich.L.Rev. 1015, 1026 (1948). There was a feeling, which still prevails among some commentators, that the broad definition of a capital expenditure as distinguished from a business expense under § 23(a) (1), the predecessor to § 162 of the 1954 Code, was inapplicable to expenses deductible under § 23(a) (2). Brookes, Litigation Expenses and the Income Tax, 12 Tax L. Rev. 241, 251-63 (1957); McDonald, Deduction of Attorneys’ Fees for Federal Income Tax Purposes, 103 U.Pa.L.Rev. 168, 184-89 (1954); Comment, Federal Income Tax Treatment of Attorneys’ Fees, 40 Tex.L.Rev. 137, 146 (1961). However, it was determined that the two provisions were in pari materia. Trust of Bingham v. Commissioner of Internal Revenue, 325 U.S. 365, 373, 65 S.Ct. 1232, 89 L.Ed. 1670 (1945); Iowa Southern, supra at 386; Munson v. McGinnes, supra" }, { "docid": "7779428", "title": "", "text": "distinction between the production of investment income, on the one hand, and the conservation of income-producing investment property, on the other. As explained by the Senate Report accompanying the enactment of the minimum tax provisions in 1969, the definitions relating to investment income and expenses were designed to differentiate “investment” activities from “trade or business” activities for purposes of the minimum tax. See S.Rep.No.91-552, supra at 113-14 (1969-3 C.B. at 496), [1969] U.S. Code Cong. & Admin.News at 2144. In Trust of Bingham v. Commissioner, supra, the issue was whether legal expenses incurred for the management and conservation of income producing property were deductible as expenses “for the production of income” within the meaning of § 23(a)(2), of the 1939 Code, the predecessor of § 212 of the 1954 Code. After noting that the scope of the deduction for investment expenses was “comparable and in pari materia” to the deduction for trade or business expenses, 325 U.S. at 373, 65 S.Ct. at 1237, the Court held that expenses incurred for the management and conservation of income-producing property were deductible “even though the particular expense was not an expense directly producing income,” id. at 374, 65 S.Ct. at 1237. We therefore affirm the decision of the district court that the management and legal fees paid by the taxpayers in this ease were properly included as investment expenses directly connected with the production of investment income within the meaning of § 57(b)(2)(C). AFFIRMED. . Since Caroline Wyly and Rosemary Wyly, the wives of Charles J. Wyly, Jr. and Sam E. Wyly, respectively, are parties to this proceeding only by virtue of having filed joint returns with their husbands, Charles J. Wyly, Jr. and Sam E. Wyly will be referred to herein as the taxpayers. . I.R.C. § 267, as in effect in 1970, provided in relevant part as follows: SEC. 267. LOSSES, EXPENSES, AND INTEREST WITH RESPECT TO TRANSACTIONS BETWEEN RELATED TAXPAYERS. (a) Deductions Disallowed. No deduction shall be allowed— (1) Losses. — In respect of losses from sales or exchanges of property (other than losses in case of distributions in corporate" }, { "docid": "9825694", "title": "", "text": "along with the other conditions imposed by section 280A(c), is a sufficient safeguard against such abuse. Respondent’s approach of requiring that the home office be the principal place at which the taxpayer’s principal business is conducted would disallow otherwise allowable deductions in connection with the use of a home office which is a principal place of business. We do not believe that Congress intended such a result. Accordingly, keeping in mind respondent’s concession (see n. 11 supra), we hold that petitioner is entitled to a deduction for expenses incurred in connection with the use of a portion of his residence as an office. The next issue for decision is whether automobile expenses paid by petitioner for travel between his residence and his rental properties were ordinary and necessary expenses incurred in carrying on a trade or business or were commuting expenses and, therefore, personal and nondeductible. Sec. 162(a); sec. 262. It is well established that expenses incurred by a taxpayer in commuting between his home and his place of business are personal and nondeductible. Commissioner v. Flowers, 326 U.S. 465, 473-474 (1946); Heuer v. Commissioner, 32 T.C. 947, 951-952 (1959), affd. per curiam 283 F.2d 865 (5th Cir. 1960). Expenses incurred on trips between two places of business, however, may be deductible. Steinhort v. Commissioner, 335 F.2d 496, 503-504 (5th Cir. 1964), affg. and remanding a Memorandum Opinion of this Court; Heuer v. Commissioner, supra at 953. Petitioner made his trips from his home office (which we have held to be the principal place of business with respect to his rental activities) to his rental properties for a business purpose, i.e., to carry out management duties at those properties. We see no reason why the rule that local transportation expenses incurred in travel between one business location and another are deductible should not be equally applicable where the taxpayer’s principal place of business with respect to the activities involved is his residence. Hulme v. United States, an unreported case (N.D. Cal. 1965, 16 AFTR 2d 5084, 1965-2 USTC par. 9499). The fact that, under such circumstances, a taxpayer has no" }, { "docid": "11033804", "title": "", "text": "entering into such business, do not, in our opinion, qualify for the application of section 174(a) (1). The principle is recognized in our repeated disallowance of such expenditures. See Dwight A. Ward, 20 T.C. 332, 343 (1953), affirmed on another issue 224 F. 2d 547 (C.A. 9,1955); George O. Westervelt, 8 T.C. 1248, 1254 (1947); Henry G. Owen, 23 T.C. 377, 381 (1954); Morton Frank, 20 T.C. 511, 513-514 (1953); Eugene H. Walet, Jr., 31 T.C. 461, 471 (1958), affd. 272 F. 2d 694 (C.A. 5, 1959). See also McDonald v. Commissioner, 323 U.S. 57 (1944). In the light of the foregoing discussion, it is our view that the research and experimental expenditures in issue were not paid or incurred by petitioner during the taxable year in question in connection with an existing trade or business and that petitioner has not established that he is entitled to the benefits of section 174(a) (1). No issue has been raised under section 174(b). Assuming arguendo (although we have held otherwise, supra) that petitioner is entitled to treat any part of his expenditures of $45,000 made under the so-called Development Contract as research and experimental expenditures under section 174(a), he has failed to establish what part thereof may be so treated. The record is silent with respect to any allocation of the $45,000 to the respective services contracted to be performed under the terms of the “Development Contract.” We note, however, that paragraph (g) of said contract requires Eesearch Laboratories to “serve as consultant to Jack F. Koons, Jr., and to his customers” in matters pertaining to the rectifier; and paragraph (b) requires the laboratory to manufacture “10,000 rectifiers for distribution to testing agencies for product certification.” Manifestly, the work called for in paragraphs (g) and (h) is not of a research and experimental nature within the intendment of the statute. Since there is no evidence of a proper allocation of the total expenditure of $45,000 to each of the provisions of the development contract, we are unable to ascertain the separate amounts allocable to paragraphs (g) and (h), or to any research" }, { "docid": "14078219", "title": "", "text": "on LaSala’s behalf. Prior to the Supreme Court’s decision in Snow, this Court had taken the position that expenditures for research and experimentation had to be made in connection with an existing business to which such research and experimentation was proximately related in order to be deductible under section 174(a)(1). Best Universal Lock Co. v. Commissioner, 45 T.C. 1 (1965); Koons v. Commissioner, 35 T.C. 1092 (1961). Research expenditures by a taxpayer not currently engaged in a trade or business were held to be nondeductible, pre-operating expenses. Koons v. Commissioner, supra. In Snow v. Commissioner, 416 U.S. 500 (1974), revg. 482 F.2d 1029 (6th Cir. 1973), affg. 58 T.C. 585 (1972), Mr. Snow was an executive with Procter & Gamble Co. In 1966, he contributed $10,000 for a 4-percent interest in Burns Investment Co. (Burns), a limited partnership formed to develop an unpatent-ed trash-burning device. Mr. Trott was the general partner of the partnership and the inventor of the trash burner. Mr. Trott conveyed all his rights in the invention to the partnership. During 1966, Burns had no manufacturing plant or office. Development of the burner began in that year and was conducted by a company owned by Mr. Trott on behalf of the partnership. No patent was applied for until 1968, and Burns made no effort to market or sell the device in 1966. The Tax Court held that the taxpayer was not entitled to deduct a distributive share of his partnership’s research expenses in 1966 because the partnership was not then engaged in a trade or business and the research was not related to the taxpayer’s own trade or business. 58 T.C. at 597. In determining that the partnership’s research expenditures in Snow were not made \"in connection with a trade or business,” we applied the facts and circumstances test of section 162, as announced in Higgins v. Commissioner, 312 U.S. 212 (1941). 58 T.C. at 594. However, one factor was given particular weight, and that was the fact that the partnership had made no sales of any product either before or during 1966. 58 T.C. at 594-596." } ]

[ { "docid": "15497359", "title": "", "text": "Gross, Inc. v. 400 Park Ave. Co., 47 N.Y.2d 769, 417 N.Y.S.2d 460, 391 N.E.2d 296 (1979). However, in Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 632, 406 N.E.2d 445, 448 (1980), the New York Court of Appeals held that, because an existing contract is entitled to greater protection than pre-con-tractual relations, the fact that a defendant had a business motive will excuse his actions only in the case of interference with pre-contractual relations: Although his status as a competitor does not protect the interferer from the consequences of his interference with an existing contract, it may excuse him from the consequences of interfering with prospective contractual relationships, where the interference is intended at least in part to advance the competing interest of the interferer, no unlawful restraint of trade is effected, and the means employed are not wrongful. This approach was followed in Maison Lazara et Compagnie v. Manfra, Tordella & Brooks, Inc., 585 F.Supp. 1286, 1291 (S.D. N.Y.1984). Wrongful means includes physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and “some degrees of economic pressure.” Guard-Life, 428 N.Y.S.2d at 632, 406 N.E. 2d at 448. a. Interference with Pre-Contractual Relations Plaintiffs allege that defendants interfered with charter opportunities for the Winged Dolphin from British Petroleum, charters in India on the Winged Dolphin and the Wayusut, and other charter opportunities for the Winged Dolphin. None of these charter opportunities resulted in a contract. Plaintiffs do not allege that defendants used any of the wrongful means identified in Guard-Life. Defendants’ actions were motivated, at least in part, by business advantage. See section 3, supra. Therefore, plaintiffs fail to state a claim for interference with prospective contractual relations, and the claims in Count VII relating to charter opportunities for the Winged Dolphin and the Wayusut are dismissed with prejudice. b. Interference with Existing Contracts The remaining claims in Count VII are deficient because the complaint fails to allege that the contracting party breached its obligations to plaintiffs. “In order for the plaintiff to have a cause of action for tortious interference of" } ]

[ { "docid": "18123597", "title": "", "text": "Accord Lowenbraun v. Garvey, 60 A.D.3d 916, 917, 876 N.Y.S.2d 441, 442 (2d Dep’t 2009). But, the dark sky of prohibition admits to just a tiny glimmer of light. Where such claims are akin to a claim for tortious interference with business relations or prospective business advantage, they may only then gain some traction. See generally Restatement (Second) of Torts § 766 cmt. g (1979). Under New York law, this class of tort does not require showing interference with an existing contract, but rather that a defendant “acted for a wrongful purpose or used dishonest, unfair, or improper means” to interfere with a business relationship of some kind. Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 547 F.3d 115, 132 (2d Cir.2008), cert. denied, Catskill Dev., L.L.C. v. Harrah’s Operating Co., — U.S. -, 129 S.Ct. 1908, 173 L.Ed.2d 1058 (2009); see Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir.2002). Stated broadly, then, where there is wrongful interference with some business relationship (including an at-will employment relationship), a tortious interference claim will lie notwithstanding the absence of a binding contract. See Albert, 239 F.3d at 274-75; Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 194, 428 N.Y.S.2d 628, 634, 406 N.E.2d 445, 451 (1980) (“Where con tracts terminable at will have been involved, we have upheld complaints ... for interference when the alleged means employed by the one interfering were wrongful”). For plaintiff, the good news ends there. To make out a tortious interference claim, a plaintiff must still establish that a “third party used wrongful means to effect the termination.” Albert, 239 F.3d at 274 (quoting Cohen v. Davis, 926 F.Supp. 399, 403 (S.D.N.Y.1996)). Here, Kanhoye’s claim for tortious interference fails as a matter of law because he cannot establish that Faivre and Corso were third parties to the employment relationship between himself and Altana. A plaintiff may only maintain “an action for tortious interference against a co-employee by showing that the co-employee ‘acted outside the scope of [his or her] authority’ ” by inducing the employer to terminate. Albert, 239 F.3d" }, { "docid": "6851189", "title": "", "text": "for interfering with the prospective economic advantage of another only where defendant’s interference is motivated solely by malice, where the defendant creates or continues an unlawful restraint of trade, or where the defendant employs wrongful means. See Guard-Life Co. v. S. Parker Hardware Manuf. Co., 50 N.Y.2d 183, 191, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980). Plaintiff suggests that based on the affidavits, there is adequate proof that Midas used wrongful means to interfere with PMC’s prospective business relationship with Danbury Exhaust and that Midas’s sole motive was to injure PMC. Plaintiff does not set forth in detail the manner by which Midas allegedly interfered with plaintiffs acquisition of Danbury Exhaust, stating only that Midas sought to persuade Danbury Exhaust not to sell its franchise to plaintiff. There is no allegation in the complaint or any evidence in the record that suggests that Midas employed any wrongful means to so persuade Danbury Exhaust. The only wrongful means claimed by plaintiff are Midas’s alleged misrepresentations and threats to plaintiff that formed the basis for plaintiffs fraud and RICO claims. However, as discussed above, Midas’s alleged misrepresentations do not constitute fraud, nor were its alleged threats sufficient to constitute duress. Therefore, plaintiffs claim that Midas used unlawful or wrongful means to interfere with its prospective business relationship with Danbury Exhaust is without merit. Furthermore, even if Midas’s means were wrongful, these alleged misrepresentations and threats were directed to plaintiff, not Danbury Exhaust.' A claim for tortious interference with a prospective business relationship turns upon the pressure or influence exercised by defendant over the party with whom plaintiff sought to establish a business relationship. See G.K.A. Beverage Corp. v. Honickman, 55 F.3d 762, 768 (2d Cir.1995); Piccoli v. Calvin Klein Jeanswear Co., 19 F.Supp.2d 157, 167 (S.D.N.Y.1998). A plaintiff cannot state a claim for tortious interference by claiming that the defendant wrongfully induced plaintiff to forego a business oppor tunity. See id. Plaintiff has presented no evidence that Midas ever employed any -wrongful means to dissuade Danbury Exhaust from selling its franchise to PMC. The Court also rejects plaintiffs claim that Midas was" }, { "docid": "19783030", "title": "", "text": "Under New York Law . Tortious interference with an existing contract is a commonly pled tort. The New York Court of Appeals reviewed the tort’s basic elements in Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120, 151 N.Y.S.2d 1, 134 N.E.2d 97 (1956) and the tort was later explained as follows: “when there is knowledge of a contract, and a competitor takes an active part in persuading a party to the contract to breach it by offering better terms or other incentives, there is an unjustifiable interference with the contract.” State Enter., Inc. v. Southridge Coop. Section 1, Inc., 18 A.D.2d 226, 227-28, 238 N.Y.S.2d 724 (N.Y.App.Div.1963). To establish tortious interference, a plaintiff must show “(1) the existence of a valid contract between plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional procuring of the breach, and (4) damages.” Foster, 87 N.Y.2d at 749-50, 642 N.Y.S.2d 583, 665 N.E.2d 153; see also Israel, 1 N.Y.2d at 120, 151 N.Y.S.2d 1, 134 N.E.2d 97. As the New York Court of Appeals has noted, the contours of the tort under New York law are uncertain. See Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 189, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980) (“With respect to the tort of interference with contract relations, it has been aptly said that the law in this area has not fully congealed but is still in a formative stage ... [jurisdictions, and even courts within a single jurisdiction, have taken different views with Respect to liability for interference with contract performance.”) (internal quotations omitted). Today, while the law has evolved, it remains murky in certain respects as discussed in this proposed certification. The New York Court of Appeals carved out an important defense to the tort — the economic interest defense: “[Pjrocuring the breach of a contract in the exercise of equal or superior right is acting with just cause or excuse and is justification for what would otherwise be an actionable wrong.’ ” Foster, 87 N.Y.2d at 750, 642 N.Y.S.2d 583, 665 N.E.2d 153 (quoting" }, { "docid": "16674439", "title": "", "text": "15 Misc.3d at 779, 836 N.Y.S.2d at 810 (quoting Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191, 406 N.E.2d 445, 449, 428 N.Y.S.2d 628, 632 (1980)). “Because simple economic ‘persuasion’ does not qualify as wrongful means, for economic pressure to be wrongful, it must be ‘extreme and unfair.’ ” Advanced Global, 15 Misc.3d at 779, 836 N.Y.S.2d at 810 (quoting Carvel v. Noonan, 3 N.Y.3d 182, 192, 818 N.E.2d 1100, 1105, 785 N.Y.S.2d 359, 364 (2004)). The evidence presented does not support a claim of tortious interference with prospective business relations. Plaintiff does not present any specific instance of a prospective client whose relations were interfered with by defendants. Although plaintiff may have lost some business because defendants offered goods to prospective clients at lower prices, such conduct under these circumstances can hardly be considered “extreme and unfair.” Accordingly, defendants’ motion for summary judgment with respect to plaintiffs claim of tortious interference with prospective business relations is granted. (3) Defendants’ Counter-Claims Defendants assert counterclaims that plaintiff abused process, committed fraud on the U.S. Patent and Trademark Office (“USPTO”), violated anti-trust laws and has tortiously interfered with defendants’ prospective business relations. Both parties cross-move for summary judgment on defendants’ counter-claims. a. Defendants’ counter-claim for abuse of process Both parties cross-move for summary judgment on defendants’ counterclaim that plaintiff has abused process by bringing an action to restrain defendants from selling candy. “In New York, a malicious abuse-of-process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse of justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir.2003) (citation omitted). Defendants have failed to demonstrate plaintiffs civil action is without legitimate justification or based primarily on a collateral objective. Plaintiff has brought several causes of action based on trademark law with the economic justification of defending its exclusive distributorship. Furthermore, although plaintiffs use of trademark law to defend" }, { "docid": "3136130", "title": "", "text": "289, 595 N.Y.S.2d 931 (N.Y.1993). The Court of Appeals has explicitly stated that this cause of action requires an actual breach. See NBT Bancorp Inc. v. Fleet/Norstar Fin. Group, Inc., 87 N.Y.2d 614, 620, 664 N.E.2d 492, 641 N.Y.S.2d 581 (N.Y.1996); see also D’Andrea v. Rafla-Demetrious, 146 F.3d 63, 65-66 (2d Cir.1998). The plaintiff, however, contends that where there is no breach, a plaintiff can still maintain a cause of action for tortious interference with contract by alleging “culpable conduct” or “wrongful means” on the part of the defendant. Plaintiff then cites to NBT and Guard-Life Corp. v. S. Parker Hardivare Mfg. Corp., 50 N.Y.2d 183, 191, 406 N.E.2d 445, 428 N.Y.S.2d 628 (N.Y.1980) for support of this proposition. The plaintiff has merged two causes of action— tortious interference with contract and tor-tious interference with prospective contract or business relations. The former requires an allegation of an actual breach, and the latter requires a showing of “wrongful means.” See NBT, 87 N.Y.2d at 620-24, 664 N.E.2d 492, 641 N.Y.S.2d 581; Guard-Life, 50 N.Y.2d at 190-92, 406 N.E.2d 445, 428 N.Y.S.2d 628. The plaintiff has alleged tortious interference with an existing contract, rather than a prospective contract. Lacking an actual breach, the plaintiff attempts to fill the void with allegations of “wrongful means,” a requirement under causes of action relating to interference with prospective contracts. In light of both the Court of Appeals’ clear statement that tor-tious interference with contract requires a showing of actual breach, and the Second Circuit’s demonstrated reluctance to find that New York courts would recognize exceptions to the rule requiring “actual breach,” see D'Andrea, 146 F.3d at 66, we decline to hold that an allegation of “wrongful means” can substitute for an allegation of actual breach in a claim for tortious interference with an existing contract claim. Thus, plaintiffs ninth cause of action is dismissed. The defendant moves to dismiss the plaintiffs tenth claim, prima facie tort, on the theory that the plaintiff has failed to state a necessary element. In particular, the defendant argues that although the plaintiff alleges that the defendant acted without legal" }, { "docid": "18927987", "title": "", "text": "claim. The Seventh Count merely alleges that Goodyear’s actions have prevented Airship’s customers from “fully exploiting” their contractual rights. Only the party who has suffered a loss of benefits may bring an action for tortious interference with a contract. Id. at 1332 n. 33. Airship’s interests are further removed since the threat of injury to its business will only be as a consequence of the lost benefits to its customers. Airship has not cited any authority for such an expansive definition of this cause of action, and the claim cannot proceed merely on a claim of consequential damages. The Eighth Count differs from the Seventh by alleging tortious interference with prospective business relations. This claim properly relates to Airship’s own interests in the consequences of Goodyear’s present actions. Goodyear asserts, however, that Airship’s pleadings are defective because they fail to allege that the defendant’s sole motive was to inflict injury or that the defendant employed unlawful means to do so. The sole motive test does not reflect the current standard as enunciated by the New York Court of Appeals. In Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980), the court emphasized that liability for tortious interference with prospective business relations depended on proof of “more culpable con duct on the part of the interferer” but did not require that the defendant’s sole motive be malice. Indeed, these elements should be considered in determining the liability of the alleged interferer: (i) whether the interference is intended to advance a competing interest; (ii) whether the interference has caused an unlawful restraint of trade, and (iii) whether the means employed were wrongful. 428 N.Y.S.2d at 632, 406 N.E.2d at 448. These issues may not be resolved merely on the basis of the absence of any allegation that malice was the sole motive of the defendant. Airship has also adequately pleaded that Goodyear employed wrongful means of interference. Its allegations in this respect are that Goodyear instituted the Nebraska and Florida actions in bad faith and threatened similar suits in bad faith. The standard" }, { "docid": "20085669", "title": "", "text": "maintain an action for tortious interference. Plaintiffs make no argument and offer no proof that LMS was anything more than an incidental beneficiary of the Hydra-ISC contract. Cf Septembertide Publishing, B. V. v. Stein & Day, Inc., 884 F.2d 675 (2d Cir.1989); Restatement (Second) of Contracts § 302 (1981). While New York courts have recognized the right of a third-party beneficiary to a contract to sue for tortious interference, no such right has been recognized for incidental beneficiaries. See, e.g., Alvord & Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281, 413 N.Y.S.2d 309, 312, 385 N.E.2d 1238, 1241 (1978) (“There exists ... no tort liability to incidental beneficiaries not in privity.”). The Court concludes that LMS lacks standing to assert a claim for tortious inference with another’s contract, and that LMS’s claims must therefore be dismissed. III. Tortious Interference Under New York law, the elements of a claim for tortious interference with contractual relations are: “ ‘(1) a valid contract between plaintiff and a third party for a specific term; (2) defendant’s knowledge of the contract; (3) defendant’s intentional procuring of its breach; and (4) damages.’” Sharma v. Skaarup Ship Management Corp., 699 F.Supp. 440, 446 (S.D.N.Y.1988), aff'd, 916 F.2d 820 (2d Cir.1990) (quoting Diehl & Sons, Inc. v. International Harvester Co., 445 F.Supp. 282, 291 (E.D.N.Y.1978)). Defendant’s acts must have been the “but for” cause of the breach of contract. Id. For a claim of interference with pre-contractual relations, a plaintiff must prove, in addition to the elements listed above, either (1) that defendant acted with exclusive malicious motivation, i.e., that defendant had no business or other motivation; or (2) that defendant employed “wrongful means” in interfering with the contract. Id. (citing Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 632, 406 N.E.2d 445, 449 (1980)). These more stringent requirements reflect a policy according greater protection to “an interest in an existing contract (as to which respect for individual contract rights outweighs the public benefit to be derived from unfettered competition) than to the less substantive, more speculative interests in" }, { "docid": "20085670", "title": "", "text": "knowledge of the contract; (3) defendant’s intentional procuring of its breach; and (4) damages.’” Sharma v. Skaarup Ship Management Corp., 699 F.Supp. 440, 446 (S.D.N.Y.1988), aff'd, 916 F.2d 820 (2d Cir.1990) (quoting Diehl & Sons, Inc. v. International Harvester Co., 445 F.Supp. 282, 291 (E.D.N.Y.1978)). Defendant’s acts must have been the “but for” cause of the breach of contract. Id. For a claim of interference with pre-contractual relations, a plaintiff must prove, in addition to the elements listed above, either (1) that defendant acted with exclusive malicious motivation, i.e., that defendant had no business or other motivation; or (2) that defendant employed “wrongful means” in interfering with the contract. Id. (citing Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 632, 406 N.E.2d 445, 449 (1980)). These more stringent requirements reflect a policy according greater protection to “an interest in an existing contract (as to which respect for individual contract rights outweighs the public benefit to be derived from unfettered competition) than to the less substantive, more speculative interests in a prospective relationship.” Guard-Life, 50 N.Y.2d at 191, 428 N.Y.S.2d at 633. “Wrongful means” include “physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and ‘some degrees of economic pressure.’ ” Sharma, supra, 699 F.Supp. at 446 (quoting Guard-Life, 50 N.Y.2d at 191, 428 N.Y.S.2d at 632, 406 N.E.2d at 449). The moving defendants attack plaintiffs’ claim on several grounds: (1) that plaintiffs should be estopped from arguing that a contract existed before May 25, 1987, by reason of Lygren’s May 18 telex denying his purchase of the Friendship; (2) that plaintiffs have failed to plead and prove “but for” causation; and (3) that plaintiffs have failed to plead and prove knowledge, intent or improper interference on the part of defendants with respect to the May 25 contract, or the use of wrongful means in interfering with a prospective contract before May 25. A. Events Prior to May 25 The standard for determining whether, as of a particular date, a binding contract existed is an objective one, which turns on the intent of the" }, { "docid": "3136129", "title": "", "text": "make proof of service does not affect the validity of the service. See Fed.R.Civ.P. 4(1). Accordingly, this portion of the defendant’s motion is denied. II. Motion to Dismiss for Failure to State an Essential Element The defendant asserts that the plaintiff has failed to state the essential elements of the following claims: tortious interference with contract; prima facie tort; and unjust enrichment. The plaintiff disputes this assertion. The plaintiffs ninth claim alleges that the defendant tortiously interfered with her contract with Capitol to release the box set. The defendant argues that the claim has failed to state the essential element of an actual breach. Under New York law, the elements of a claim for tortious interference with contractual relations are: i) the existence of a valid contract between the plaintiff and a third party; ii) defendant’s knowledge of the contract; iii) defendant’s intentional inducement of the third party to breach the contract or otherwise render performance impossible; and iv) damages to the plaintiff. See Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 612 N.E.2d 289, 595 N.Y.S.2d 931 (N.Y.1993). The Court of Appeals has explicitly stated that this cause of action requires an actual breach. See NBT Bancorp Inc. v. Fleet/Norstar Fin. Group, Inc., 87 N.Y.2d 614, 620, 664 N.E.2d 492, 641 N.Y.S.2d 581 (N.Y.1996); see also D’Andrea v. Rafla-Demetrious, 146 F.3d 63, 65-66 (2d Cir.1998). The plaintiff, however, contends that where there is no breach, a plaintiff can still maintain a cause of action for tortious interference with contract by alleging “culpable conduct” or “wrongful means” on the part of the defendant. Plaintiff then cites to NBT and Guard-Life Corp. v. S. Parker Hardivare Mfg. Corp., 50 N.Y.2d 183, 191, 406 N.E.2d 445, 428 N.Y.S.2d 628 (N.Y.1980) for support of this proposition. The plaintiff has merged two causes of action— tortious interference with contract and tor-tious interference with prospective contract or business relations. The former requires an allegation of an actual breach, and the latter requires a showing of “wrongful means.” See NBT, 87 N.Y.2d at 620-24, 664 N.E.2d 492, 641 N.Y.S.2d 581; Guard-Life, 50 N.Y.2d at 190-92," }, { "docid": "21890889", "title": "", "text": "plaintiff was constructively discharged, this court cannot rule that plaintiff has not suffered a constitutional deprivation. In the instant case, the substantive rights that plaintiff seeks to enforce under § 1983 are those of due process and equal protection under the Fifth and Fourteenth Amendments. Plaintiff contends that if the trier of fact finds that defendants were motivated by illegal discriminatory reasons in their attempt to transfer her out of the Music Department, such an attempt would violate the Equal Protection Clause. This Circuit has established that a violation of equal protection is sufficient to maintain a § 1983 claim. Carrero v. New York Housing Authority, 890 F.2d 569, 576 (2d Cir.1989); Moche v. City University of New York, 781 F.Supp. 160, 168-69 (E.D.N.Y.1992), aff'd, 999 F.2d 538 (1993). Accordingly, plaintiff has stated a claim under § 1983. VIII. Tortious Interference with Contractual Relations Since this court retains jurisdiction over the Title VII and § 1983 claims, plaintiffs state law tortious interference claim will be retained under the doctrine of supplemental jurisdiction, 28 U.S.C. § 1367. Since the court has a basis for subject matter jurisdiction, the inquiry can turn to whether plaintiff has stated a claim of tortious interference. To determine if plaintiff has stated a claim for tortious interference, it is necessary to turn to the applicable New York state law standard. To maintain a successful cause of action for tortious interference with contract under New York law, a plaintiff must allege and prove the existence of a valid contract and damages caused by the defendants’ knowing and intentional interference with that contract without reasonable justification. Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 189-90, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980); Schulz v. Washington County, 157 A.D.2d 948, 550 N.Y.S.2d 446, 449 (3d Dep’t 1990). The key inquiry ordinarily, and in this case, is whether the interference was “without reasonable justification” or was improper. Guard-Life, 50 N.Y.2d at 189-90, 428 N.Y.S.2d 628, 406 N.E.2d 445. In order to determine if there was improper interference with the contract, the New York Court of Appeals has" }, { "docid": "16674438", "title": "", "text": "relations. The required elements of a cause of action for tortious interference with prospective business relations are as follows: (a) business relations with a third party; (b) the defendant’s interference with those business relations; (c) the defendant acting with the sole purpose of harming the plaintiff or using wrongful means; and (d) injury to the business relationship. Advanced Global Tech. LLC v. Sirius Satellite Radio, Inc., 15 Misc.3d 776, 779, 836 N.Y.S.2d 807, 809 (Sup.Ct. New York County 2007). To demonstrate tortious interference with prospective business relations it must be shown that defendants’ conduct “was undertaken for the sole purpose of harming plaintiff, or that such conduct was wrongful or improper independent of the interference allegedly cause thereby.” Jacobs v. Continuum Health Partners, Inc., 7 A.D.3d 312, 313, 776 N.Y.S.2d 279, 280 (1st Dep’t 2004). “ ‘Wrongful means’ include ‘physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone although it is knowingly directed at interference with the contract.’ ” Advanced Global, 15 Misc.3d at 779, 836 N.Y.S.2d at 810 (quoting Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191, 406 N.E.2d 445, 449, 428 N.Y.S.2d 628, 632 (1980)). “Because simple economic ‘persuasion’ does not qualify as wrongful means, for economic pressure to be wrongful, it must be ‘extreme and unfair.’ ” Advanced Global, 15 Misc.3d at 779, 836 N.Y.S.2d at 810 (quoting Carvel v. Noonan, 3 N.Y.3d 182, 192, 818 N.E.2d 1100, 1105, 785 N.Y.S.2d 359, 364 (2004)). The evidence presented does not support a claim of tortious interference with prospective business relations. Plaintiff does not present any specific instance of a prospective client whose relations were interfered with by defendants. Although plaintiff may have lost some business because defendants offered goods to prospective clients at lower prices, such conduct under these circumstances can hardly be considered “extreme and unfair.” Accordingly, defendants’ motion for summary judgment with respect to plaintiffs claim of tortious interference with prospective business relations is granted. (3) Defendants’ Counter-Claims Defendants assert counterclaims that plaintiff abused process, committed fraud on" }, { "docid": "6547485", "title": "", "text": "failed to demonstrate a probability of success on this claim, d. Intentional Interference With Prospective Contractual Relations Apollo’s final claim is that Centrosphere has tortiously interfered with Apollo’s prospective business relations with NAPO-COR. According to Apollo, Centrosphere “owed Apollo a fiduciary duty not to use its confidential trade secrets to compete with Apollo for the NAPOCOR business.” Moving Brief at 26. Because Centrosphere has “blatantly flouted this fiduciary duty,” Apollo claims it is liable for the tort of interference. Id. Intentional interference with prospective contractual relations is a recognized tort in New York. Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 190-91, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980). To prevail on such a claim, the plaintiff must show that a contract would have been entered into but for the actions of the defendant. Harden, S.P.A. v. Commodore Electronics, Ltd., 90 A.D.2d 733, 734, 455 N.Y.S.2d 792, 795 (1st Dep't 1982). In addition, the plaintiff must show either that the defendant’s sole purpose was to damage the plaintiff or that the means employed to induce termination of the relationship were wrongful. PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 269 (2d Cir.1987); Sutton Import-Export Corp. v. Starcrest, 762 F.Supp. 68, 71 (S.D.N.Y.1991); International Minerals & Res., Inc. v. Pappas, 761 F.Supp. 1068, 1075 (S.D.N.Y.1991); Pennsylvania Eng. Corp. v. Islip Res. Recovery Agency, 710 F.Supp. 456, 468 (E.D.N.Y.1989); Lerman v. Medical Assoc. of Woodhull, P.C., 160 A.D.2d 838, 839-40, 554 N.Y.S.2d 272, 273 (2d Dep’t 1990); Harden, 90 A.D.2d at 734, 455 N.Y.S.2d at 794. “Wrongful means” have been defined as including physical violence or threats of physical violence, fraud or misrepresentation, civil suits, criminal prosecutions and some degrees of economic pressure. Guard-Life, 50 N.Y.2d at 191, 428 N.Y.S.2d 628, 406 N.E.2d 445 (citing Restatement (Second) of Torts § 768 comment e, § 767, comment c); see also International Minerals, 761 F.Supp. at 1075; Perry v. International Transport Workers’ Fed., 750 F.Supp. 1189, 1207 (S.D.N.Y.1990). A defendant’s breach of its fiduciary duty may also constitute wrongful means. Mayo, Lynch & Assocs., Inc. v. Fine, 148 A.D.2d" }, { "docid": "7028120", "title": "", "text": "adequate basis for rejecting a claim of improper motivation for a defendant’s action.” Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985). “If, after pretrial discovery the court is convinced as a matter of law that the suit could have only one possible outcome, summary judgment must be granted.” R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984). 4. The Tortious Interference Claims We begin our discussion of the substantive issues with Counts III-V of the amended complaint which state closely related claims for tortious interference with contract and with business relations. The alleged wrongful conduct consists of Miller’s barring of the Posas’ trucks from its premises with the intent of interfering in the Posas’ shipping contracts and advantageous business relations with the Miller distributors. In dealing with claims of this type New York has adopted the approach and analysis set forth in the Second Restatement of Torts (1977) (“Restatement”). Guard-Life Corp. v. S. Parker Hardware Manufacturing Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980). The elements of both torts are very similar. One is liable for interference with contractual relations who “intentionally and improperly interferes with the performance of a contract ... between another and a third person by inducing or otherwise causing the third person not to perform the contract.” Restatement § 766. Liability for interference with business relations not cemented by contract likewise attaches where the interference is “intentional and improper.” Id. § 766B. The distinction between contractual and non-contractual business relations lies in the greater protection that is afforded an interest in an existing contract than to a less substantive, more speculative business relationship. See Guard-Life Corp. v. S. Parker Hardware Manufacturing Corp., supra, 50 N.Y.2d at 191, 428 N.Y.S.2d at 633, 406 N.E.2d at 449. Thus interference with a business relationship not amounting to contract is only actionable if unlawful means are used or if the motive for the interference is solely to harm the plaintiff. See Beardsley v. Kilmer, 236 N.Y. 80, 140 N.E. 203 (1923). Even if one intentionally interferes with a contractual" }, { "docid": "4986267", "title": "", "text": "N.Y.3d 182, 785 N.Y.S.2d 359, 818 N.E.2d 1100 (2004) the New York Court of Appeals reiterated that greater protection is accorded an interest in an existing contract than to the less substantive, more speculative interest in a prospective business relationship. Therefore, allegations of more culpable conduct on the part of the defendant is required for the tort of interference with business relations than for the tort of interference with contract. Id. at 189-90, 785 N.Y.S.2d 359, 818 N.E.2d 1100 (citing NBT Bancorp Inc. v. Fleet/Norstar Fin. Group, Inc., 87 N.Y.2d 614, 641 N.Y.S.2d 581, 664 N.E.2d 492 (1996). Thus, “as a general rule, the defendant’s conduct must amount to a crime or an independent tort” because “[c]onduct that is not criminal or tortious will generally be lawful and thus insufficiently culpable to create liability for interference with prospective contracts or other non-binding economic relations.” Id. at 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100. The requirement that the conduct amount to a crime or independent tort is, however, a “general rule.” The Carvel court also held that “wrongful means” may also include “some degree of economic pressure” and that economic pressure must be directed at the party with which the plaintiff has or seeks to have a relationship and must be “extreme and unfair” to be wrongful. Id. at 192-93, 785 N.Y.S.2d 359, 818 N.E.2d 1100. “Wrongful means include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone although it is knowingly directed at interference with the contract.” Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191, 428 N.Y.S.2d 628, 406 N.E.2d 445, 449 (1980)). Defendants argue that these claims must be dismissed for failure to sufficiently plead the third element, viz. whether they acted with the “sole purpose of harming the plaintiff’ or used “dishonest, unfair or improper means.” Defendants suggest that the customers had the right to cancel their own contracts, that Eric Wahrsager had a “long, personal relationship” with these customers himself, and that he cannot be prevented from “earning a" }, { "docid": "15437385", "title": "", "text": "caused by the defendant’s knowing and intentional interference with that contract without reasonable justification. See, e.g., Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 189-90, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980); Schulz v. Washington County, 550 N.Y.S.2d 446, 449, 157 A.D.2d 948 (3d Dep’t 1990). The key inquiry ordinarily, and in this case, is whether the interference was “without reasonable justification” or, put differently, was “improper.” Guard-Life, 50 N.Y.2d at 189-90, 428 N.Y.S.2d 628, 406 N.E.2d 445. To determine whether interference with a contract was justified, the New York Court of Appeals has adopted the approach set forth in the Restatement (Second) of Torts § 767 (1979). Guard-Life, 50 N.Y.2d at 189-90, 428 N.Y.S.2d 628, 406 N.E.2d 445. This approach requires a balancing of factors to determine whether the interference was justified under the circumstances of the particular case. These factors include: the nature of the defendant’s conduct, the defendant’s motive, the interests of the plaintiff with which the defendant interferes, the interests the defendant seeks to advance, the social interests at stake, the proximity of the defendant’s conduct to the interference, and the relations between the parties. Restatement (Second) of Torts § 767; Guard-Life, 50 N.Y.2d at 190 & n. 2, 428 N.Y.S.2d 628, 406 N.E.2d 445. As discussed above, on the basis'of the present record, there are outstanding issues of material fact concerning, among other things, whether JFJ engaged in fraudulent and deceptive practices intended to injure defendants in the conduct of their religion and whether defendants’ conduct was prompted by JFJ’s use of such allegedly deceptive practices or, as plaintiffs contend, by impermissible' discriminatory reasons. The resolution of these issues at trial will bear directly on the relative weight to assign to the factors listed above in determining whether defendants’ interference with JFJ’s contract was justified. Accordingly, summary judgment cannot be granted for defendants on JFJ’s tortious interference with contract claim. D. Sections 40 and 41 of the New York Civil Rights Law. Section 40 of the New York Civil Rights Law provides in pertinent part: All persons within the jurisdiction of this" }, { "docid": "4986268", "title": "", "text": "that “wrongful means” may also include “some degree of economic pressure” and that economic pressure must be directed at the party with which the plaintiff has or seeks to have a relationship and must be “extreme and unfair” to be wrongful. Id. at 192-93, 785 N.Y.S.2d 359, 818 N.E.2d 1100. “Wrongful means include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone although it is knowingly directed at interference with the contract.” Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191, 428 N.Y.S.2d 628, 406 N.E.2d 445, 449 (1980)). Defendants argue that these claims must be dismissed for failure to sufficiently plead the third element, viz. whether they acted with the “sole purpose of harming the plaintiff’ or used “dishonest, unfair or improper means.” Defendants suggest that the customers had the right to cancel their own contracts, that Eric Wahrsager had a “long, personal relationship” with these customers himself, and that he cannot be prevented from “earning a living or contacting customers who are open, notorious and generally available to the public.” (Ds’ Memo at 24.) This argument, however, belies the factual backdrop of this lawsuit. Plaintiff alleges that the Wahrsager’s efforts to in terfere with NYMP’s relationship with its customers came on the heels of an alleged fraud scheme by NYMP’s officers, which lead to the default in loan obligations to the Lender and a collateral call for the assets that NYMP and its guarantors pledged in support of the revolving loan. Given these alleged facts, plaintiff has more than met his burden to allege a plausible claim that defendants interfered with these relationship in order to siphon customers to Central Station and thwart the Lender’s efforts to retain these customers once it took over the business. In light of the patent motivation present in the alleged facts, and the “extreme and unfair” pressure exerted on these customers in the form of threats that monitoring services on their property would be shut off imminently, plaintiff has alleged sufficient facts to allege the" }, { "docid": "18927988", "title": "", "text": "York Court of Appeals. In Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980), the court emphasized that liability for tortious interference with prospective business relations depended on proof of “more culpable con duct on the part of the interferer” but did not require that the defendant’s sole motive be malice. Indeed, these elements should be considered in determining the liability of the alleged interferer: (i) whether the interference is intended to advance a competing interest; (ii) whether the interference has caused an unlawful restraint of trade, and (iii) whether the means employed were wrongful. 428 N.Y.S.2d at 632, 406 N.E.2d at 448. These issues may not be resolved merely on the basis of the absence of any allegation that malice was the sole motive of the defendant. Airship has also adequately pleaded that Goodyear employed wrongful means of interference. Its allegations in this respect are that Goodyear instituted the Nebraska and Florida actions in bad faith and threatened similar suits in bad faith. The standard for proving such an allegation is, as Goodyear notes, very stringent. Restatement (Second) of Torts § 767, comment (1979) (litigation is “ordinarily wrongful if the actor has no belief in the merit of the litigation or if, though having some belief in its merit, he nevertheless institutes or threatens to institute the litigation in bad faith, intending only to harass the third parties and not to bring his claim to definitive adjudication”). Nevertheless, I conclude that the complaint’s reference to Goodyear’s bad faith is an adequate if brief reference to this element of the cause of action. Finally, in its Ninth Count, Airship sets forth a conclusory allegation of unfair competition based on all of the acts of Goodyear. Although Airship cites to a commentary for the proposition that under New York law unfair competition may be based on any allegations that the defendant has acted unfairly in some manner, 60 N.Y. Law Trademarks § 64 at 88, the courts have been less expansive with this cause of action. In Saratoga Vichy Spring Co. v." }, { "docid": "21890890", "title": "", "text": "1367. Since the court has a basis for subject matter jurisdiction, the inquiry can turn to whether plaintiff has stated a claim of tortious interference. To determine if plaintiff has stated a claim for tortious interference, it is necessary to turn to the applicable New York state law standard. To maintain a successful cause of action for tortious interference with contract under New York law, a plaintiff must allege and prove the existence of a valid contract and damages caused by the defendants’ knowing and intentional interference with that contract without reasonable justification. Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 189-90, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980); Schulz v. Washington County, 157 A.D.2d 948, 550 N.Y.S.2d 446, 449 (3d Dep’t 1990). The key inquiry ordinarily, and in this case, is whether the interference was “without reasonable justification” or was improper. Guard-Life, 50 N.Y.2d at 189-90, 428 N.Y.S.2d 628, 406 N.E.2d 445. In order to determine if there was improper interference with the contract, the New York Court of Appeals has adopted the approach set forth in the Restatement (Second) of Torts § 767 (1979). Guard-Life, 50 N.Y.2d at 189-90, 428 N.Y.S.2d 628, 406 N.E.2d 445. It is really a balancing test that requires the balancing of several factors. These factors include: the nature of the defendant’s conduct, the defendant’s motive, the interests of the plaintiff with which the defendant interferes, the interests the defendant seeks to advance, the social interests at stake, the proximity of the defendant’s conduct to the interference, and the relations between the parties. Restatement (Second) of Torts § 767; Guard-Life, 50 N.Y.2d at 190 & n. 2, 428 N.Y.S.2d 628, 406 N.E.2d 445. Conclusion Therefore, in accordance with the above discussion, this court denies defendants’ motion for summary judgment on all grounds save one. Defendants’ motion for summary judgment-is partially granted as to the dismissal of plaintiffs 42 U.S.C. §§ 1981 and 1983 claims against CUNY for monetary damages. SO ORDERED." }, { "docid": "21712083", "title": "", "text": "an existing contract is not materially different in Massachusetts and New York. In Massachusetts, a plaintiff alleging tortious interference with contractual relations “must prove that: (1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant’s interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.” G.S. Enters., Inc. v. Falmouth Marine, Inc., 571 N.E.2d 1363, 1369, 410 Mass. 262, 272 (1991). Similarly, “[u]nder New York law, the elements of a tortious interference claim are: (a) that a valid contract exists; (b) that a ‘third party’ had knowledge of the contract; (c) that the third party intentionally and improperly procured the breach of the contract; and (d) that the breach resulted in damage to the plaintiff.” Finley v. Giacobbe, 79 F.3d 1285, 1294 (2d Cir.1996) see also Don King Prods. v. Douglas, 742 F.Supp. 741, 771-72 (S.D.N.Y.1990); Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289, 292 (1993); Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370, 1375 (1996); Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120, 151 N.Y.S.2d 1, 134 N.E.2d 97, 99 (1956). Both Massachusetts and New York courts have adopted the Restatement (Second) of Torts’ standard for determining what constitutes “improper” interference with an existing contract. See Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 189-90, 428 N.Y.S.2d 628, 406 N.E.2d 445, 448 (1980); G.S. Enterprises, Inc., 571 N.E.2d at 1369-70, 410 Mass. at 272-73 (1991). Under this standard, it is always improper for a competitor to induce a party to breach an existing contract (as opposed to otherwise interfering with a prospective contract). See Guard-Life, 50 N.Y.2d at 194, 428 N.Y.S.2d 628, 406 N.E.2d 445; Melo-Tone Vending, Inc. v. Sherry, Inc., 39 Mass.App.Ct. 315, 319-20, 656 N.E.2d 312, 314-15, (1995). “Laws are in material conflict if the differences in the laws ‘have a significant possible effect on the outcome of the trial.’ ”" }, { "docid": "15405522", "title": "", "text": "for tortious interference with contractual relations would still fail because the Amended Complaint neither states the time, nor the subject matter of the alleged contract with Morgan Stanley. The Amended Complaint is also defective because it fails to identify how Morgan Stan ley breached the alleged contract. It generally asserts that Morgan Stanley did not comply with the terms of the- agreement that it entered into with Plaintiffs. But the Amended Complaint fails to identify the exact terms breached as a result of Rare Medium’s acts. Plaintiffs’ tortious interference with contractual relations claim is defective for another reason. Under New York law, such a claim must plead that a defendant used “wrongful means” to induce the third party to breach the contract. See Guard-Life Corp. v. S. Parker Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 406 N.E.2d 445, 448-49 (N.Y.1980); accord NBT Bancorp Inc., et al v. Fleet/Norstar Financial Group, Inc., 87 N.Y.2d 614, 641 N.Y.S.2d 581, 664 N.E.2d 492, 495-96 (1996). “Wrongful means” includes physical violence, fraud, or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure. But it does not include persuasion alone, even if it is knowingly directed at interference with the contract. See Guard-Life, 428 N.Y.S.2d 628, 406 N.E.2d at 449. The Court dismissed the claim for tortious interference with contractual relations in the Original Complaint because Plaintiffs failed to sufficiently allege wrongful means. See Wolff 171 F.Supp.2d at 359. In the Amended Complaint, Plaintiffs allege that Rare Medium used wrongful means when it fraudulently misrepresented to Morgan Stanley that the Attempted Transactions were not permissible under the Merger Agreement, and that it would take legal action to prevent them from occurring. (Am.Compl.1ffl 38, 54, 62.) To set out a claim for fraudulent misrepresentation the Plaintiffs must plead the following elements: (i) that the defendant made a false misrepresentation about a material fact, (ii) the defendant knew the representation was false, (iii) the defendants intended that the plaintiff rely on the statement and the plaintiff did rely in the course of his ignorance, and (iv) damages resulted from the misrepresentation. See Cohen" } ]

[ { "docid": "22669599", "title": "", "text": "F.3d 943 (9th Cir.1999), we concluded that petitioner Singh Bhathal’s untimely motion to reopen was barred by statute, and held that even if Singh-Bhathal had filed a timely motion to reopen, he could not show that “exceptional circumstances,” as defined by 8 U.S.C. § 1252b(f)(2), justified his failure to appear at his deportation hearing. See also Farhoud v. INS, 122 F.3d 794 (9th Cir.1997) (alien failed to demonstrate “exceptional circumstances” to excuse his failure to appear at the deportation hearing). Unlike the Sharmas and Singh Bhathal, the Ekimians cannot point to any statutory, regulatory, or case-law definition of “exceptional circumstances” applicable to the BIA’s sua sponte power under § 3.2(a). Because we cannot discover a sufficiently meaningful standard against which to judge the BIA’s decision not to reopen under § 3.2(a), we hold that we do not have jurisdiction to review the Ekimians’ claim that the BIA should have exercised its sua sponte power. In doing so, we join the First Circuit, which, in Luis v. INS, 196 F.3d 36 (1st Cir.1999), affirmed the BIA’s denial of a motion to reopen on the grounds that the motion was untimely and that petitioner Luis failed to argue to the BIA that it should have exercised its sua sponte power. It then stated: Assuming arguendo that Luis would have exhausted her administrative remedies [by raising the sua sponte argument below], this court still has no jurisdiction to review this claim because the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion. Therefore, the very nature of the claim renders it not subject to judicial review. Id. at 40 (emphasis added). The First Circuit wrote that under Heckler, the lack of guidelines and standards dictating the BIA’s sua sponte power deprived the court of “jurisdiction to review Luis’s claim that the BIA should have invoked its sua sponte authority to reconsider her motion to reopen the deportation proceedings.” Id. at 41. See also Prado v. Reno, 198 F.3d 286, 292 (1st Cir.1999) (“[B]ecause ‘the decision of the BIA whether to invoke its sua sponte authority" } ]

[ { "docid": "20771194", "title": "", "text": "(1st Cir.1999) (explaining that “the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion”) (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999)). This view accords with the thinking of our sister circuits, ten of which have concluded that there are no meaningful standards against which to judge the BIA’s exercise or non-exercise of its discretion to reopen proceedings sua sponte. See, e.g., Mosere v. Mukasey, 552 F.3d 397, 400-01 (4th Cir.2009); Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir.2008); Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir.2008) (en banc) (per curiam); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam): Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002). Thus, each of these courts has concluded, as do we, that when a motion to reopen has been directed to the BIA’s sua sponte authority, the court of appeals lacks jurisdiction to review a denial of the motion. The petitioner’s only real rejoinder is to suggest that Zhang and Prado are incorrectly decided. We think not. In any event, we are foreclosed from reexamining the holding in those cases. “We have held, time and again, that in a multi-panel circuit, prior panel decisions are binding upon newly constituted panels in the absence of supervening authority sufficient to warrant disregard of established precedent.” Muskat v. United States, 554 F.3d 183, 189 (1st Cir.2009) (quoting United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991)). The petitioner has not identified any supervening authority that might make a difference here. Consequently, the law-of-the-circuit doctrine is in full flower; Zhang and Prado are binding precedents, and we must follow them. We need go no further. The BIA’s exercise of its unfettered discretion to decline reopening of the petitioner’s removal proceedings sua sponte lies beyond" }, { "docid": "14709839", "title": "", "text": "motion to reopen, and his petition implicates none of the other jurisdictional bars set out in 8 U.S.C. § 1252(a)(2). Second, unless barred by statute from review, denials of motions to reopen are generally subject to judicial review irrespective of whether the BIA’s decision rested on a legal or constitutional ruling. The existence of a legal or constitutional question, as opposed to a factual issue, only restores jurisdiction over matters otherwise barred from review. See 8 U.S.C. § 1252(a)(2)(D). Courts do not lose jurisdiction to review the BIA’s denial of a motion to reopen or other ordinarily reviewable matters merely because the BIA rested its conclusion upon an underlying factual determination. See id. Our earlier opinion held that no legal or constitutional issues were raised by the BIA’s determination that Neves’s time- and number-barred motion to reopen was not subject to equitable tolling because of Neves’s failure to show due diligence. See Neves, 568 F.3d at 42. On that basis, we held we were barred from exercising jurisdiction to review the BIA’s decision. See id. at 42-43. That holding, as Kucana makes clear, was erroneous. Kucana does not affect the subsidiary holding in our earlier opinion that federal courts lack jurisdiction to review the BIA’s decision to exercise or decline to exercise its sua sponte authority to reopen proceedings. Such decisions are “committed to [the BIA’s] unfettered discretion” by law, Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); see also 8 C.F.R. § 1003.2(a), and “the very nature of the claim renders it not subject to judicial review,” Luis, 196 F.3d at 40; see also Caldero-Guzman v. Holder, 577 F.3d 345, 348 (1st Cir.2009). Nor does it affect our earlier determination that no constitutional claims were presented. B. Equitable Tolling We turn to Neves’s argument that the BIA abused its discretion by re fusing to allow his otherwise time- and number-barred second motion to reopen by application of equitable tolling. We review the BIA’s decision to grant or deny a motion to reopen for abuse of discretion. Vaz Dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir.2010). We" }, { "docid": "11352865", "title": "", "text": "motion to vacate; vacated its own June 4, 2008 sua sponte order, as well as the IJ’s November 22, 2010 decision ordering Guerrero’s deportation; denied Guerrero’s March 17, 2008 motion to reconsider; and dismissed Guerrero’s appeal from the IJ’s November 22, 2010 decision as moot. The BIA then declared that its January 23, 2002 deportation order remained in effect. II. ANALYSIS Advancing multiple arguments, Guerrero now petitions for review of the BIA’s November 27, 2012 order (the most recent one) effectively denying sua sponte reopening proceedings, and asks us to reverse it. But we cannot. We lack jurisdiction to do so. Although we typically have jurisdiction to review the denial of a motion to reopen by the BIA, “there are exceptions to that general rule.” Peralta v. Holder, 567 F.3d 31, 32 (1st Cir.2009). One of these exceptions is the review of a “decision not to reopen removal proceedings sua sponte,” id., because “[tjhere are no guidelines or standards which dictate how and when the BIA should invoke its sua sponte power,” Córdoba-Quiroz v. Gonzales, 233 Fed.Appx. 5, 7 (1st Cir.2007)(alteration in original) (quoting Luis v. I.N.S., 196 F.3d 36, 41 (1st Cir.1999)) (internal quotation marks omitted). “The BIA’s regulations provide that it ‘may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.’ ” Cerrato-Marquez v. Holder, 563 Fed.Appx. 1, 2 (1st Cir.2014)(quoting 8 C.F.R. § 1003.2(a)) (Souter, J.). And this decision of whether to invoke its sua sponte authority is committed “to the unbridled discretion of the [BIA].” Id. (alteration in original)(quoting Matos-Santana v. Holder, 660 F.3d 91, 94 (1st Cir.2011)) (internal quotation marks omitted); see 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board.... [which] has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”). It is undisputed that the BIA’s June 4, 2008 order reopening Guerrero’s proceedings was issued pursuant to its sua sponte authority. In deciding to invoke this discretionary" }, { "docid": "15009220", "title": "", "text": "'significant restraints on liberty ... not shared by the public generally, along with some type of continuing governmental supervision.' ” (App. at 13 (quoting Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir.2003)) (omission in original).) .Specifically, the government argued that 8 U.S.C. §§ 1252(b)(9) and 1252(g), as amended by the REAL ID Act, precluded review of Chehazeh’s claims. . Chehazeh’s removal proceedings are stayed pending the outcome of this appeal, pursuant to an order we entered on December 3, 2010. . We and other courts of appeals have sometimes spoken in terms of “jurisdiction” when addressing judicial power to consider peti tions for review of BIA decisions pursuant to the APA. See, e.g., Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) (dismissing a petition for review for \"lack of appellate jurisdiction” after determining that the \"BIA retains unfettered discretion to decline to sua sponte reopen or reconsider a deportation proceeding”); Hernandez v. Holder, 606 F.3d 900, 904 (8th Cir.2010) (holding that the court \"lack[ed] jurisdiction” over the BIA's decision to deny administrative closure because there was no meaningful standard against which to judge the BIA’s decision); Ekimian v. I.N.S., 303 F.3d 1153, 1154 (9th Cir.2002) (holding that the court ”lack[ed] jurisdiction to review a BIA decision not to reopen the [removal] proceeding sua sponte ” because it could not \"discover a sufficiently meaningful standard against which to judge the BIA’s decision” (emphasis removed)); Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999) (holding that the court had \"no jurisdiction” to review the decision of the BIA not to reopen removal proceedings sua sponte because \"the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion.”). That may be viewed, however, as too loose a use of that term. The Supreme Court has said that \"the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.” Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Rather, the \"federal question” statute, 28 U.S.C. § 1331, ”confer[s] jurisdiction on federal courts to" }, { "docid": "22698325", "title": "", "text": "next alleges that the BIA erred by declining to exercise its discretionary power to sua sponte reopen Mos-ere’s asylum application for extraordinary circumstances. Every circuit that has considered this issue has determined that the BIA’s decision whether to exercise its power to reopen sua sponte is unreviewable because there are no meaningful standards for courts to apply in review. Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir. 2008) (en banc) (per curiam); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). We have reached the same decision in a prior unpublished opinion, Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam), and we reaffirm that holding today. Section 1003.2(a) provides that the BIA “may” reopen on its own motion, but it “provides no guidance as to the BIA’s appropriate course of action, sets forth no factors ..., places no constraints on the BIA’s discretion, and specifies no standards for a court to use to cabin the BIA’s discretion.” Tamenut, 521 F.3d at 1004. While the BIA has indicated it will exercise its power to reopen sua sponte in the presence of exceptional circumstances, “the mere fact that the BIA has acknowledged the existence of its authority to reopen sua sponte in what it deems to be ‘exceptional situations’ is not sufficient to establish a meaningful standard for judging whether the BIA is required to reopen proceedings on its own motion.” Tame-nut, 521 F.3d at 1005 (emphasis in original). Because there are no meaningful standards by which to judge the BIA’s exercise of its discretion, we find that we lack jurisdiction to review its refusal to sua sponte reopen Mosere’s case. III. For the foregoing reasons, we deny the petition for review in part and" }, { "docid": "22663334", "title": "", "text": "it had rendered a decision,’ ” Pet’r’s Br. at 35 n. 10 (emphasis added), he insists that “the Board should nonetheless have exercised such authority here as the Petitioner certainly presents compelling and exceptional circumstances upon which to act,” id. at 35. It is a matter of first impression in this Circuit whether we have jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen removal proceedings. According to the relevant provision in the Code of Federal Regula tions, the BIA “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 [8 C.F.R. § 1003.2]. The Board has discretion to deny a motion to reopen even if the moving party has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). Several other circuits have concluded that the BIA’s failure to reopen removal proceedings sua sponte is a discretionary decision that cannot be reviewed by the Courts of Appeals. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004) (holding that because the “Code of Federal Regulations suggests that no meaningful standard exists against which to judge an IJ’s decision to exercise sua sponte authority to reopen deportation proceedings,” such decisions are committed to the discretion of the BIA and therefore unreviewable); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003) (same); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003) (same); Ekimian v. INS, 303 F.3d 1153, 1157-58 (9th Cir.2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999) (same); see also Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003) (“[F]ailure to reopen sua sponte is a discretionary decision that is unreviewable ....”); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999) (holding that 8 C.F.R. § 1003.2(a) gives the BIA “non-reviewable discretion” to' decline to reopen deportation proceedings). We hereby join our sister circuits in holding that a decision of the BIA whether to reopen" }, { "docid": "22179966", "title": "", "text": "abuse its discretion when it concluded that Harchenko had failed to show materially changed conditions in the Ukraine such that his failure to file a timely motion to reopen could be excused. Harchenko also contends that the BIA abused its discretion by declining to exercise its sua sponte authority to reopen proceedings under 8 C.F.R. § 3.2(a). The BIA noted that its discretionary power to reopen under § 3.2(a) is limited to “exceptional situations” and concluded that Har-chenko’s desire to seek an adjustment of status was not exceptional. The government contends that this court lacks jurisdiction to find that the BIA abused its discretion by failing to exercise its discretionary authority to reopen Harchenko’s proceedings. We agree. The decision whether to invoke sua sponte authority is committed to the unfettered discretion of the BIA. See 8 C.F.R. § 3.2(a). “There fore, the very nature of the claim renders it not subject to judicial review.” Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999). See also Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1154 (9th Cir.2002); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). As other courts have noted, the discretion permitted by § 3.2(a) is “so wide that even if the party moving has made out a prima facie case for relief, the BIA can deny a motion to reopen a deportation order. No language in the provision requires the BIA to reopen a deportation proceeding under any set of particular circumstances. Instead, the provision merely provides the BIA the discretion to reopen immigration proceedings as it sees fit.” Anin, 188 F.3d at 1279 (citations and quotation omitted). This reasoning is based on the Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), in which the court held that “review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Section 3.2(a) provides no standard by which to judge the agency’s exercise of discretion." }, { "docid": "22044931", "title": "", "text": "MARCUS, Circuit Judge: Petitioners Clara Ines Lenis, her husband Orlando Herrera, and their two children Tatiana Herrera and Marlon Herrera (collectively, “Lenis”), petition for review of the Board of Immigration Appeals’ (“BIA’s”) decision denying their motion for a sua sponte reopening of their case, pursuant to 8 C.F.R. § 1003.2(a). On appeal, Lenis claims that the BIA abused its discretion in denying a request to use its sua sponte powers to reopen the underlying proceedings essentially because the agency had issued a precedential decision changing the meaning of the term “particular social group” under the asylum laws. After thorough review, we dismiss the petition for lack of jurisdiction. The dispositive issue is whether we have jurisdiction to review the BIA’s denial of a motion to reopen the underlying immigration proceedings based on its sua sponte authority. We are, of course, always required to address whether we have subject-matter jurisdiction. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir.2005). This kind of challenge — asking whether the BIA abused its discretion by refusing to reopen proceedings under 8 C.F.R. § 1003.2(a) — has previously been before this Court in Anin v. Reno, 188 F.3d 1273 (11th Cir.1999). However, Anin did not squarely address whether we have jurisdiction in this situation, and in fact, the parties here agree that Anin does not resolve the matter. Today, however, the government contends that we are without jurisdiction. It is, therefore, an issue of first impression that we must resolve. Ten courts of appeals have held that they have no jurisdiction to hear an appeal of the BIA’s denial of a motion to reopen based on its sua sponte authority. See Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam) (un published); Emiquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Tamenut v. Mukasey," }, { "docid": "20771193", "title": "", "text": "also United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir.1997) (“We have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation.”). The petitioner’s only recourse before the BIA, then, was a plea for the exercise of the agency’s sua sponte power to allow reopening. That plea did not succeed before the BIA, see supra, and it leads the petitioner down a blind alley in this venue. The BIA’s discretion in this regard is unfettered; there are no standards in place by which a court can review the use or non-use of that sua sponte discretion. Cognizant of that reality, we have held, squarely and recently, that we lack jurisdiction over BIA decisions declining to reopen removal proceedings sua sponte. See Zhang v. Gonzales, 469 F.3d 51, 53 (1st Cir.2006) (recognizing that the BIA has plenary discretion to determine whether to reopen sua sponte and, therefore, that a decision declining to exercise such discretion is “[b]y its very nature, ... unreviewable”); Prado v. Reno, 198 F.3d 286, 292 (1st Cir.1999) (explaining that “the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion”) (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999)). This view accords with the thinking of our sister circuits, ten of which have concluded that there are no meaningful standards against which to judge the BIA’s exercise or non-exercise of its discretion to reopen proceedings sua sponte. See, e.g., Mosere v. Mukasey, 552 F.3d 397, 400-01 (4th Cir.2009); Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir.2008); Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir.2008) (en banc) (per curiam); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam): Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002). Thus, each of these courts" }, { "docid": "15009223", "title": "", "text": "the Seventh and Eighth circuits have recently held that whether a court has the authority to review a decision of the BIA under the APA is not a jurisdictional question. Vahora v. Holder, 626 F.3d 907, 917 (7th Cir.2010) (holding that the \"issue [of whether the court could review the BIA's decision to grant administrative closure] is not termed properly one of jurisdiction ... [it] is not a question of whether this court has the authority to review, but rather whether the lack of any 'judicially manageable’ standard, Heckler, 470 U.S. at 830, 105 S.Ct. 1649, makes any review within [the court’s] power, as a practical matter, impossible.”); Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir.2010) (\"When a plaintiff complains about an action that is committed to agency discretion by law, it does not mean that a court lacks subject matter jurisdiction over the claim. Instead, it means that there is no law to apply because the court has no meaningful standard against which to judge the agency’s unfettered exercise of discretion.”). We agree with the Seventh and Eighth circuits that even if Congress has committed discretion to the BIA by law to take or not take certain actions, it has not deprived the District Court or us of jurisdiction to consider a plaintiff’s claim that such action was erroneous pursuant to the APA. The question is whether a plaintiff can state a claim for relief from such action under the APA. See Trudeau, 456 F.3d at 185 (the APA provides \"a limited cause of action for parties adversely affected by agency action”). , The government cites to a not precedential opinion to support its position. Not precedential opinions are, by definition, not binding on this Court, and our internal operating procedures do not allow us to cite and rely upon those opinions. See Internal Operating Procedures 5.7 (3d Cir.2010). The government also notes our statement from Pllumi v. Attorney General that whether to sua sponte reopen is “committed to the unfettered discretion of the BIA, [and] we lack jurisdiction to review a decision on whether and how to" }, { "docid": "23232998", "title": "", "text": "(4) certain in absentia decisions. Qeraxhiu v. Gonzales, 206 Fed.Appx. 476, 480 (6th Cir.2006) (citing 8 C.F.R. § 1003.2(a), (c)(3)). Here, Barry does not dispute that her motion to reopen was filed after the 90-day period. Rather, she argues that the BIA abused its discretion when it (a) failed to exercise its sua sponte authority to reopen proceedings and (b) refused to apply equitable tolling to excuse her failure to timely file because she received ineffective assistance of counsel. A. Sua sponte authority We previously have held that “[t]he decision whether to invoke sua sponte authority [under 8 C.F.R. § 1003.2(a)] is committed to the unfettered discretion of the BIA” and therefore is not subject to judicial review. Harchenko v. I.N.S., 379 F.3d 405, 410-11 (6th Cir.2004) (citing 8 C.F.R. § 1003.2(a); Luis v. I.N.S., 196 F.3d 36, 40 (1st Cir.1999); see also Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir.2003); Ekimian v. I.N.S., 303 F.3d 1153, 1154 (9th Cir.2002); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999)). Section 1003.2(a) “allows the BIA to reopen proceedings in exceptional situations; it does not require the BIA to do so.” Harchenko, 379 F.3d at 411. “Har-chenko affirmed the principle that review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Randhawa v. Gonzales, 184 F. App’x. 502, 503 (6th Cir.2006) (internal quotations and citations omitted). The BIA here explicitly declined to exercise its sua sponte authority to reopen Barry’s removal hearings. Therefore, irrespective of whether that decision was proper, Sixth Circuit law is clear that the BIA’s determination to forgo the exercise of its sua sponte authority is a decision that we are without jurisdiction to review. B. Equitable tolling Barry also argues that the BIA erred when it declined to equitably toll the 90-day filing deadline for her motion to reopen. We review the BIA’s denial of a motion to reopen under an abuse-of-discretion standard. See Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006). “This standard requires us to" }, { "docid": "11352866", "title": "", "text": "233 Fed.Appx. 5, 7 (1st Cir.2007)(alteration in original) (quoting Luis v. I.N.S., 196 F.3d 36, 41 (1st Cir.1999)) (internal quotation marks omitted). “The BIA’s regulations provide that it ‘may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.’ ” Cerrato-Marquez v. Holder, 563 Fed.Appx. 1, 2 (1st Cir.2014)(quoting 8 C.F.R. § 1003.2(a)) (Souter, J.). And this decision of whether to invoke its sua sponte authority is committed “to the unbridled discretion of the [BIA].” Id. (alteration in original)(quoting Matos-Santana v. Holder, 660 F.3d 91, 94 (1st Cir.2011)) (internal quotation marks omitted); see 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board.... [which] has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”). It is undisputed that the BIA’s June 4, 2008 order reopening Guerrero’s proceedings was issued pursuant to its sua sponte authority. In deciding to invoke this discretionary power, the BIA admittedly relied on the erroneous premise that Guerrero had continued to reside in the United States for over twenty-two years as a lawful permanent resident, unaware of Guerrero’s deportation from the country in the interim. After learning of “this previously undisclosed fact,” the BIA reconsidered its decision on December 27, 2012, and concluded that sua sponte reopening was not warranted. It was fully authorized to do so. See Cerrato-Marquez, 563 Fed.Appx. at 2. The BIA had unfettered discretion to deny reopening the proceedings in March 2008 (when Guerrero filed his untimely motion to reconsider), and it retained unfettered discretion to reconsider and deny reopening in December 2012. See Matos-Santana, 660 F.3d at 94 (“[T]he BIA has the authority at any time, on its own initiative, to reopen a previously decided case.”). Consequently, just as we would have lacked jurisdiction to review the BIA’s refusal to exercise its sua sponte authority to reopen Guerrero’s case in June 2008, we lack jurisdiction to review it now. Cf. Charuc v. Holder, 737 F.3d 113, 115" }, { "docid": "21804243", "title": "", "text": "time limits imposed by law on motions to reopen or reconsider removal proceedings. The respondent has offered no explanation for the delay in making the due process and other arguments now being made. Further, we do not find that exceptional circumstances warranting the sua sponte reopening of these proceedings have been demonstrated. Accordingly, the untimely motion is denied. (citations omitted). Undeterred, Ramirez appealed again, and so here we are today. ANALYSIS • Ramirez renews his mistranslation-based due-process claim on appeal, and adds one more: the BIA abused its discretion by failing to give a reasoned explanation of its decision not to exercise its sua sponte authority. The government coun ters that this court does not have jurisdiction to review either claim. We briefly address the question of our jurisdiction, but And it’s not as clear-cut as the government says—so, we dodge it and explain why Ramirez still cannot prevail. I. Jurisdiction We start with the jurisdictional issue. Ramirez appealed to the BIA’s sua sponte authority under 8 C.F.R. § 1003.2(a), which provides that “[t]he Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” As the government points out, we have repeatedly held that we do not have jurisdiction to review challenges to the BIA’s failure to exercise its sua sponte authority because such decisions are “committed to its unfettered discretion.” Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999). Because “no judicially manageable standards are available. for judging how and when [the BIA] should exercise its discretion, ... it is impossible to evaluate [the] agency action for ‘abuse of discretion’” so “the very nature of the claim renders it not subject to judicial review.” Id. (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)); see also Neves v. Holder, 613 F.3d 30, 35 (1st Cir. 2010); Caldero-Guzman, 577 F.3d at 348. But Ramirez claims that our case law precluding our jurisdiction over the BIA’s failure to exercise its sua sponte authority should not stop us from exercising jurisdiction in this case." }, { "docid": "22762389", "title": "", "text": "the BIA should have exercised sua sponte authority to reopen a case. Wang, 260 F.3d at 453 & n. 4 (declining to decide whether jurisdiction was appropriate regarding the IJ’s decision not to exercise sua sponte jurisdiction because petitioner had failed to exhaust administrative remedies); cf. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.2000) (holding — in the context of a timely filed motion — that jurisdiction is proper to consider a BIA’s denial of a motion to reopen). Multiple circuits have held that they lack jurisdiction to hear such claims. See, e.g., Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002) (“Because we cannot discover a sufficiently meaningful standard against which to judge the BIA’s decision not to reopen under § 3.2(a), we hold that we do not have jurisdiction to review the [petitioners’] claim that the BIA should have exercised its sua sponte power.”); Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999) (opining that it had no jurisdiction to review a petitioner’s claim that the BIA should have invoked its sua sponte authority because “the very nature of the claim renders it not subject to judicial review”); but see Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999) (holding that 8 C.F.R. § 3.2(a) “gives the BIA non-reviewable discretion to dismiss [petitioner’s] claim,” yet curiously analyzing that decision under an abuse of discretion standard and finding no abuse of discretion) (emphasis added). In Belay-Gebru v. INS, 327 F.3d 998 (10th Cir.2003), the Tenth Circuit examined this jurisdictional issue after a petitioner had filed an untimely motion for review of deportation proceedings. The court held that it lacked jurisdiction because the only basis for reopening the case sua sponte, 8 C.F.R. § 1003.2(a), “provides no standards controlling or directing the BIA’s decision whether to reconsider on its own motion.” Id. at 1001. Because the Supreme Court has opined that “review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct." }, { "docid": "23264579", "title": "", "text": "“congressional design” that “[Congress], and only [Congress], would limit the federal courts’ jurisdiction,” id. at 839-40. The Court’s holding in Kucana was clear: “While Congress pared back judicial review in IIRIRA, it did not delegate to the Executive authority to do so.” Id. at 840. Were it otherwise, “the Executive would have a free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions ‘discretionary. ’” Ibid. We therefore reject the government’s argument that review of the denial of the petitioner’s motion to reopen is barred by the confluence of 8 U.S.C. § 1252(a) (2) (B) (ii) and 8 C.F.R. § 1003.2(4). The government also cites our precedents — Harchenko v. INS and Barry v. Mukasey — as an additional ground for finding a lack of jurisdiction to review the denial of the motion to reopen. In Harchenko, a panel of this court was asked to overturn the BIA’s refusal to reopen a matter sua sponte. The court observed that the decision whether to reopen was within the BIA’s discretion, and looking to the Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), held that the court had no jurisdiction to review the administrative decision. The panel stated: “The decision whether to invoke sua sponte authority is committed to the unfettered discretion of the BIA.... ‘Therefore, the very nature of the claim renders it not subject to judicial review.’ ” Harchenko, 379 F.3d at 410-11 (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999) (reasoning that where there is no meaningful standard against which to judge the agency’s exercise of discretion, Heckler v. Chaney, 470 U.S. at 830, 105 S.Ct. 1649, bars judicial review)). Following Harchenko, the court in Barry held that the court of appeals has no jurisdiction to review the denial of a motion to reopen sua sponte. See Barry, 524 F.3d at 724 (stating that where the BIA declines to exercise its sua sponte authority to reopen removal proceedings, “irrespective of whether that decision was proper ... the BIA’s" }, { "docid": "22663335", "title": "", "text": "sua sponte is a discretionary decision that cannot be reviewed by the Courts of Appeals. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004) (holding that because the “Code of Federal Regulations suggests that no meaningful standard exists against which to judge an IJ’s decision to exercise sua sponte authority to reopen deportation proceedings,” such decisions are committed to the discretion of the BIA and therefore unreviewable); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003) (same); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003) (same); Ekimian v. INS, 303 F.3d 1153, 1157-58 (9th Cir.2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999) (same); see also Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003) (“[F]ailure to reopen sua sponte is a discretionary decision that is unreviewable ....”); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999) (holding that 8 C.F.R. § 1003.2(a) gives the BIA “non-reviewable discretion” to' decline to reopen deportation proceedings). We hereby join our sister circuits in holding that a decision of the BIA whether to reopen a case sua sponte under 8 C.F.R. § 1003.2(a) is entirely discretionary and therefore beyond our review — in other words, we lack jurisdiction to review the BIA’s decision not to reopen Ali’s immigration proceedings sua sponte. H? Hi H: * * * We have considered all of petitioners’ arguments and found each of them to be without merit. Accordingly, we Deny those parts of Ali’s petition for review that pertain to the BIA’s denial of Ali’s motion to reopen and Dismiss for lack of jurisdiction Ali’s challenge to the BIA’s discretionary decision not to exercise its authority to reopen proceedings sua sponte. . 8 C.F.R. § 1003.2(a) provides, in relevant part, that The [BIA] 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 any party affected by the decision, must be in the form of a" }, { "docid": "22780587", "title": "", "text": "are not relevant to his persecution claim. We separately note that the respondent may address a request for humanitarian parole for medical treatment to the DHS, as requests for deferred action are within the jurisdiction of DHS, not the Immigration Courts or this Board.” (AR at 4.) The BIA concluded that Pllumi had “not presented an exceptional situation which would warrant reopening” and declined to exercise its authority to reopen his case sua sponte. Pllumi has petitioned for review of the BIA’s decision that he failed to demonstrate changed country conditions such that he would be eligible for reopening under 8 C.F.R. § 1003.2(c)(3)(ii). Alternatively, he contends that his petition should be granted because the BIA’s refusal to sua sponte reopen his proceedings is predicated on an error of law. II. Standard of Review In immigration cases, we review a denial of a motion to reopen or a motion to reconsider for abuse of discretion, regardless of the underlying basis of the alien’s request for relief. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). We give the BIA’s decision broad deference and generally do not disturb it unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation and quotation omitted). However, motions that ask the BIA to sua sponte reopen a case are of a different character. Because such motions are committed to the unfettered discretion of the BIA, we lack jurisdiction to review a decision on whether and how to exercise that discretion. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003). Nevertheless, in Mahmood v. Holder the United States Court of Appeals for the Second Circuit suggested that there is jurisdiction to remand to the BIA for reconsideration when the BIA’s decision to decline to exercise its sua sponte authority is based on a misperception of the relevant law. 570 F.3d 466, 469 (2d Cir.2009). In Mahmood, the petitioner, a native of Pakistan, filed for an adjustment of status after his marriage to a" }, { "docid": "15009181", "title": "", "text": "juvenile status because the INA did not preclude review of that decision and the decision was not committed to agency discretion). On general principles, then, the District Court had jurisdiction over Chehazeh’s claims under § 1331 and could have reviewed the BIA’s decision to reopen Chehazeh’s removal proceedings pursuant to the APA if (1) the BIA’s action was not “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2); (2) no statute precluded review, 5 U.S.C. § 701(a)(1); (3) the BIA’s action was a “final agency action,” 5 U.S.C. § 704; and (4) no “special statutory review” provision required that Chehazeh’s action be brought in some other form or forum, 5 U.S.C. § 703. We consider each of those requirements below. 1. The BIA’s Decision to Sua Sponte Reopen Removal Proceedings is Not Committed to Agency Discretion By Law The government, relying on Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003), and related cases, argues that the BIA has “unfettered discretion” (Letter Brief of Appellee at 5 (July 15, 2011)) regarding whether to reopen removal proceedings and, therefore, a BIA decision to sua sponte reopen proceedings is committed to agency discretion by law. Those precedents, however, were based on BIA decisions declining to sua sponte reopen removal proceedings. See Calle-Vujiles, 320 F.3d at 475 (“[T]his court is without jurisdiction to review a [BIA] decision declining to exercise [sua sponte ] discretion to reopen or reconsider [a] case.” (emphasis added)); Alzaarir v. Att’y Gen., 639 F.3d 86, 89 n. 2 (3d Cir.2011) (“[T]he BIA’s decision not to reopen the proceedings sua sponte. ... is a discretionary decision beyond our jurisdiction.” (emphasis added)). We have never decided whether a BIA decision to reopen, as opposed to declining to reopen, is committed to agency discretion. The government acknowledges that no precedential opinion — in this Circuit or any other — has decided whether decisions to reopen are unreviewable, but it argues that there is “no principled basis” for distinguishing “denials of reopening ... from grants of reopening.” (Letter Brief of Appellee at 2 (July 22, 2011).) We disagree. The distinction between acting" }, { "docid": "15009219", "title": "", "text": "that he was not detained as of that date. . Although the IJ does not cite it, she may have been relying on § 1158(a)(2)(D), which allows tin application to be considered beyond the one-year period if there are \"extraordinary circumstances relating to the delay in filing an application.” . See Biskupski v. Att’y Gen., 503 F.3d 274, 276 n. 1 (3d Cir.2007) (‘‘On March 1, 2003, Congress transferred the INS's functions to the Bureau of Immigration and Customs Enforcement. ...\" (citing 6 U.S.C. §§ 251, 271 & 291)). . Chehazeh’s brief addressed a number of other purported \"frauds” that were not discussed in the ICE motion but that were mentioned in an affidavit attached to that motion. . Because the initial decision was sent to a wrong address and Chehazeh did not receive notice of it, the BIA reissued its decision on October 21, 2008. .Although Chehazeh was not actually in custody, he asserted that the District Court could still exercise habeas jurisdiction because he was \"subject to removal proceedings against him, which constitute 'significant restraints on liberty ... not shared by the public generally, along with some type of continuing governmental supervision.' ” (App. at 13 (quoting Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir.2003)) (omission in original).) .Specifically, the government argued that 8 U.S.C. §§ 1252(b)(9) and 1252(g), as amended by the REAL ID Act, precluded review of Chehazeh’s claims. . Chehazeh’s removal proceedings are stayed pending the outcome of this appeal, pursuant to an order we entered on December 3, 2010. . We and other courts of appeals have sometimes spoken in terms of “jurisdiction” when addressing judicial power to consider peti tions for review of BIA decisions pursuant to the APA. See, e.g., Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) (dismissing a petition for review for \"lack of appellate jurisdiction” after determining that the \"BIA retains unfettered discretion to decline to sua sponte reopen or reconsider a deportation proceeding”); Hernandez v. Holder, 606 F.3d 900, 904 (8th Cir.2010) (holding that the court \"lack[ed] jurisdiction” over the BIA's decision to deny administrative" }, { "docid": "15009221", "title": "", "text": "closure because there was no meaningful standard against which to judge the BIA’s decision); Ekimian v. I.N.S., 303 F.3d 1153, 1154 (9th Cir.2002) (holding that the court ”lack[ed] jurisdiction to review a BIA decision not to reopen the [removal] proceeding sua sponte ” because it could not \"discover a sufficiently meaningful standard against which to judge the BIA’s decision” (emphasis removed)); Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999) (holding that the court had \"no jurisdiction” to review the decision of the BIA not to reopen removal proceedings sua sponte because \"the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion.”). That may be viewed, however, as too loose a use of that term. The Supreme Court has said that \"the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.” Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Rather, the \"federal question” statute, 28 U.S.C. § 1331, ”confer[s] jurisdiction on federal courts to review agency action.” Califano, 430 U.S. at 105, 97 S.Ct. 980; see Chrysler Corp. v. Brown, 441 U.S. 281, 317 n. 47, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) (“Jurisdiction to review agency action under the APA is found in 28 U.S.C. § 1331.”). \"The judicial review provisions of the APA,” on the other hand, \"provide a limited cause of action for parties adversely affected by agency action.” Oryszak v. Sullivan, 576 F.3d 522, 525 (D.C.Cir.2009) (internal quotation marks omitted). Thus, if “agency action is committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), or the action is not \"final agency action,” 5 U.S.C. § 704, \"a plaintiff who challenges such an action cannot state a claim under the APA,” Oryszak, 576 F.3d at 525, and the action must be dismissed. See also Trudeau v. FTC, 456 F.3d 178, 184-85 (D.C.Cir.2006) (holding that the provision of the APA limiting judicial review to “final agency action,” does not determine whether a federal court has jurisdiction but whether a plaintiff has a cause of action). Accordingly," } ]

[ { "docid": "9539784", "title": "", "text": "§ 8, cl. 3 (Congress has power “[t]o regulate Commerce ... with the Indian Tribes”); Cherokee Nation v. Hitchcock, 187 U.S. 294, 305-07, 23 S.Ct. 115, 119-20, 47 L.Ed. 183 (1902). For example, in the Major Crimes Act Congress specifically gave federal courts criminal jurisdiction over Indians who commit certain felonies, including murder, kidnapping, and burglary, a provision that has existed in various forms since 1885. See 18 U.S.C. § 1153. Congress, however, does not always act with Indian tribes in mind when it crafts legislation. Rather, Congress may draft laws using general terms that make no reference to Indian tribes. The question then arises whether statutes that fail to address Indian tribes specifically nevertheless encompass the conduct of members of those tribes. As a general rule, statutes written in terms applying to all persons include members of Indian tribes as well. Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 553, 4 L.Ed.2d 584 (1960). An exception, however, follows on the heels of the rule, namely that when the application of a statute would affect Indian or tribal rights recognized by treaty or statute, or would affect rights essential to self-governance of intramural matters, the law specifi cally must evince Congressional intent to interfere with those rights. Smart v. State Farm Ins. Co., 868 F.2d 929, 932-34 (7th Cir.1989). As the Ninth Circuit put it: A federal statute of general applicability that is silent on the issue of applicability to Indian Tribes will not apply to them if: (1) the law touches “exclusive rights of self-governance in purely intramural matters”; (2) the application of the law to the tribe would “abrogate rights guaranteed by Indian treaties”; or (3) there is proof “by legislative history or some other means that Congress intended [the law] not apply to Indians on then- reservations ...” [quoting United States v. Farris, 624 F.2d 890, 893-94 (9th Cir.1980) ]. In any of these three situations, Congress must expressly apply a statute to Indians before we will hold that it reaches them. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113," } ]

[ { "docid": "1047335", "title": "", "text": "there. It is undisputed that the regulation of the practice of law is traditionally the province of the states. Federal law “may not be interpreted to reach into areas of State sovereignty unless' the language of the federal law compels the intrusion.” City of Abilene v. FCC, 164 F.3d 49, 52 (D.C.Cir.1999). Otherwise put, “if Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistak ably clear in the language of the statute.’ ” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). By now it should be abundantly plain that Congress has not made an intention to regulate the practice of law “unmistakably clear” in the language of the GLBA. In Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), citing, inter alia, Will and Atascadero State Hospital, the Supreme Court held that [t]his plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere. 501 U.S. at 461, 111 S.Ct. 2395. The Commission contends that this plain statement rule of Gregory is not applicable, arguing that Gregory, which concerns a determination of qualification for state officials, involved a “decision of the most fundamental sort for a sovereign entity.” Id. at 460, 111 S.Ct. 2395. According to the Commission, the present regulation, “by contrast ... regulates the conduct of private entities or individuals; there is no regulation of States or state officials.” Reply Brief at 27. This response does not pass muster. Gregory itself quoted from Will the language in which the Supreme Court rejected an argument that the plain statement rule applied only in an Eleventh Amendment context. “ ‘Atascadero, was an Eleventh Amendment case, but a similar approach is applied in other contexts.’ ” Gregory, 501 U.S. at 461, 111 S.Ct. 2395 (quoting Will, 491 U.S." }, { "docid": "83654", "title": "", "text": "domain power, and — if FERC does have such authority — whether the provisions of Order No.2003 that address eminent domain are constitutional. Courts may not presume that Congress has intended to regulate the “substantial sovereign powers” of states unless the federal statute in question is unmistakably clear. The Supreme Court has held that “if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)) (internal quotation marks omitted). “This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.” Gregory, 501 U.S. at 461, 111 S.Ct. 2395. Courts have applied this clear statement rule in a variety of cases involving federal regulation of the “substantial sovereign powers” of the states. See, e.g., Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 543-44, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002) (whether the federal supplemental jurisdiction statute tolls the statutes of limitation for state law claims in state court); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73-74, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (whether a federal statute abrogates state sovereign immunity); Gregory, 501 U.S. at 461-67, 111 S.Ct. 2395 (whether the federal Age Discrimination in Employment Act applies to state judges); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (whether states are “persons” that may be sued under 42 U.S.C. § 1983); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) (whether a federal statute preempts state law); Am. Bar Ass’n v. FTC, 430 F.3d 457, 471-72 (D.C.Cir.2005) (whether a federal statute should be interpreted to regulate the practice of law, which has long been regulated at the state" }, { "docid": "12218346", "title": "", "text": "decision.” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) (internal parallel citations omitted). We observed that pursuant to Supreme Court directives, “where application of a federal statute to a state ‘would upset the usual constitutional balance of federal and state powers[,] ... “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides” this balance.’ ” Torcasio, 57 F.3d at 1344-45 (alteration in original) (quoting Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400-01, 115 L.Ed.2d 410 (1991) (quoting Atascadero, 473 U.S. at 243, 105 S.Ct. at 3147-48)). In applying this “clear statement” principle, we determined that “[i]t cannot be disputed that the management of state prisons is a core state function.” Id. at 1345; see also id. (citing Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 1810-11, 40 L.Ed.2d 224 (1974) (holding that “[o]ne of the primary functions of government is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task”), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S.Ct. 1874, 1881-82, 104 L.Ed.2d 459 (1989); Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1837-38, 36 L.Ed.2d 439 (1973) (“It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.”)). As support for the proposition that the management of state prisons is a core state function, we cited our decision in Harker v. State Use Industries, 990 F.2d 131 (4th Cir.1993), which held that state prisoners involved in an employment skills development program in prison were not entitled to the minimum wage mandated by the Fan-Labor Standards Act (FLSA). See Torcasio, 57 F.3d at 1345; see also id. at 1345 n. 4 (noting that “[m]ost" }, { "docid": "5651193", "title": "", "text": "laissez-faire, depends upon regulations establishing and enforcing those rights. Robert L. Hale, “Coercion and Distribution in a Supposedly Non-Coercive State,” 38 Pol.Sci.Q. 470 (1923); Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State 20 (1990). The warden-policemen of the Great Lakes Indian Fish and Wildlife Commission are an important element of the scheme for regulating Indian property rights. The courts have spoken of the “inherent sovereignty” of Indian tribes and have held that it extends to- the kind of regulatory functions exercised by the Commission with respect to both Indians and non-Indians. South Dakota v. Bourland, — U.S. -, -, 113 S.Ct. 2309, 2319, 124 L.Ed.2d 606 (1993); Montana v. United States, 450 U.S. 544, 565-66, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981); United States v. Wheeler, 435 U.S. 313, 325, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978). The idea of comity — of treating sovereigns, including such quasi-sovereigns as states and Indian tribes, with greater respect than other litigants — counsels us to exercise forbearance in construing legislation as having invaded the central regulatory functions of a sovereign entity. Of course the Indians have no constitutional immunity from such intrusion; after Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), even the states do not. But even when it has no constitutional backing, comity is a proper consideration in statutory interpretation. So the Supreme Court has held in insisting that if Congress wants to alter the traditional balance between the states and the federal government it make its intention unmistakable. United States v. Bass, 404 U.S. 336, 349-50, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971); Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989); Gregory v. Ashcroft, — U.S. -, -, 111 S.Ct. 2395, 2403, 115 L.Ed.2d 410 (1991). Our dictum in Smart v. State Farm Ins. Co., 868 F.2d 929, 936 (7th Cir.1989), that “federalism uniquely concerns States; there simply is no Tribe counterpart,” goes too far. Indian tribes, like states, are quasi-sovereigns entitled to" }, { "docid": "16479556", "title": "", "text": "entirety. The state’s first argument for a judge-made exception straddles the two criteria. The argument is that Congress cannot invade an “essential state function,” such as prison administration, without a clear statement of its intent to invade it. “Clear statement” rules of statutory interpretation occupy an intermediate zone — some would say a no man’s land — between interpretations motivated by desire to avoid a constitutional challenge and interpretations motivated by desire to give effect to the legislature’s intentions. They give quasi-constitutional protection — quasi-constitutional because based on constitutional values but not an interpretation of the Constitution, and therefore subject to being overruled by Congress — to quasi-constitutional interests, such as the interest of the state in being allowed to perform the traditional core functions of state government without federal interference. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400-01, 115 L.Ed.2d 410 (1991); Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989); William N. Eskridge, Jr. & Philip P. Frickey, “Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking,” 45 Vand.L.Rev. 593, 597 (1992). A parallel to that clear-statement rule is the rule that statutes will be interpreted so far as possible to avoid infringing the prerogatives of tribal Indian governments. See, e.g., United States v. Funmaker, 10 F.3d 1327, 1330-31 (7th Cir.1993); Reich v. Great Lakes Indian Fish & Wildlife Comm’n, 4 F.3d 490, 493, 495 (7th Cir.1993). The tribal interest in autonomy, like the state interest in autonomy that undergirds the principle of federalism (both being forms of comity, the mutual respect of sovereigns), is not a constitutional right. But it has a kind of constitutional dignity that the courts go out of their way to protect, whether or not they are right in supposing that Congress would not want the interest impaired unless it made its intentions to do so unmistakable. Prison administration is indeed a core function of state government, as is education. But the state’s concession that the Americans with Disabilities Act applies to the prison’s relations with its employees and" }, { "docid": "1264896", "title": "", "text": "is whether the district court has jurisdiction of this suit brought by the United States, as a proprietary owner of the Park and Refuge, to protect its property from the nutrient pollution emanating from the EAA, by requiring the State agencies to carry out their State statutory duties to enforce the applicable water quality standards in waters diverted to the Park and Refuge. Focusing on Article III, Section 2, of the Constitution which extends the federal judicial power to “controversies to which the United States shall be a party,” the Interve-nors argue that the settling parties are free to enter into any agreement that they may choose, but the district court may not enter such an agreement as a consent decree unless it is founded upon a federal statute or constitutional right. To support this position, the Intervenors rely on restrictions on federal suits against states based on the powers granted to Congress and the residual state powers under the Tenth Amendment. They point to eases which strike down as unconstitutional an intrusion by Congress into the lawmaking functions of the states, and argue by analogy that the same principles apply to Article III jurisdiction. See New York v. United States, — U.S. -, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (under the Tenth Amendment Congress may not compel the states to enact or administer a federal regulatory program); Gregory v. Ashcroft, 501 U.S. 452, 460-66, 111 S.Ct. 2395, 2401-03, 115 L.Ed.2d 410 (1991) (requiring “plain statement” in acts of Congress to override state decisions); Will v. Mich. Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) (requirement of a clear statement in legislation with intent to affect the federal balance); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (category of “traditional governmental function” is untenable standard for judicial decisions regarding state immunity under the Commerce Clause). Intervenors submit that Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) condemns a federal court in instructing state" }, { "docid": "5651194", "title": "", "text": "invaded the central regulatory functions of a sovereign entity. Of course the Indians have no constitutional immunity from such intrusion; after Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), even the states do not. But even when it has no constitutional backing, comity is a proper consideration in statutory interpretation. So the Supreme Court has held in insisting that if Congress wants to alter the traditional balance between the states and the federal government it make its intention unmistakable. United States v. Bass, 404 U.S. 336, 349-50, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971); Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989); Gregory v. Ashcroft, — U.S. -, -, 111 S.Ct. 2395, 2403, 115 L.Ed.2d 410 (1991). Our dictum in Smart v. State Farm Ins. Co., 868 F.2d 929, 936 (7th Cir.1989), that “federalism uniquely concerns States; there simply is no Tribe counterpart,” goes too far. Indian tribes, like states, are quasi-sovereigns entitled to comity. Comity argues for allowing the Indians to manage their own police as they like, even though no treaty confers such prerogatives, until and unless Congress gives a stronger indication than it has here that it wants to intrude on the sovereign functions of tribal government. The Department’s lawyer argued that application of the overtime provisions of the Fair Labor Standards Act would benefit the Commission’s law enforcement officers, who are of course themselves Indians, even if it hurt their employer. Well, it might, but then again it might not — for there is a lively debate over whether regulations of the employment relation such as minimum wage and overtime regulations actually benefit the ostensible beneficiaries, since by making labor more expensive such regulations may cause disemployment. See, e.g., Mechmet v. Four Seasons Hotel, Ltd., 825 F.2d 1173, 1176 (7th Cir.1987); Finis Welch, Minimum Wages: Issues and Evidence (1978); The Economics of Legal Minimum Wages (Simon Rotten-berg ed. 1981); Charles Brown, Curtis Gilroy & Andrew Kohen, “The Effect of the Minimum Wage on Employment and" }, { "docid": "8874560", "title": "", "text": "superseded state regulation than we were in those cases where a State was exercising its historic powers over such traditionally local matters as public safety and order and the use of streets and highways. Allen-Bradley Local No. 1111 v. Wisconsin Employment Relations Bd., 315 U.S. 740, 749, 62 S.Ct. 820, 86 L.Ed. 1154 (1942) (quoting Hines, 312 U.S. at 68, 61 S.Ct. 399) (citation omitted). Massachusetts argues that the ordinary clear statement rule regarding congressional intent to preempt should apply because state procurement is a traditional area of state power reserved to the states by the Tenth Amendment. Cf. Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (“[I]f Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the'statute.” (quoting Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)) (internal quotation marks omitted)). This argument is no more convincing here than it is in the context of Massachusetts’s claim that its Tenth Amendment interests shield its law from scrutiny under Zschemig. Massachusetts argues that “state procurement is not an area of unique federal interest” (internal quotation marks omitted), but ignores the fact that its law, like the federal sanctions against Burma, is aimed primarily at effecting change in and expressing disapproval of the current regime in Burma. Similarly, the fact that Congress has at times explicitly preempted local sanctions, see, e.g., 50 U.S.C. app. § 2407(c) (West 1991) (stating that federal provisions prohibiting United- States persons from complying with foreign boycotts against nations with which the United States maintains friendly relations preempted state and local laws, regulations, and rules), does not prevent our finding of preemption where Congress has not spoken so directly. To do otherwise would be to ignore Hines. Massachusetts attempts to distinguish this case from Hines by relying on De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). De Canas concerned a California law forbidding employers from “knowingly" }, { "docid": "16479558", "title": "", "text": "visitors, as well as to the public schools, suggests that the clear-statement rule does not carry this particular core function of state government outside the scope of the Act. We doubt, moreover, that Congress could speak much more clearly than it did when it made the Act expressly applicable to all public entities and defined the term “public entity” to include every possible agency of state or local government. Maybe there is an inner core of sovereign functions, such as the balance of power between governor and state legislature, that if somehow imperiled by the ADA would be protected by the clear-statement rule, cf. Gregory v. Ashcroft, supra, 501 U.S. at 461-63, 111 S.Ct. at 2401-02; but the mere provision of public services, such as schools and prisons, is not within that inner core. The second and as it seems to us firmer basis for judgermade exceptions to statutes is where the exception is necessary to save the statute from generating absurd consequences. E.g., Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 2566-67, 105 L.Ed.2d 377 (1989); Bryant v. Madigan, supra, 84 F.3d at 248-49; Merrill Lynch, Pierce, Fenner & Smith v. Lauer, 49 F.3d 323, 326-27 (7th Cir.1995); Cass R. Sunstein, Legal Reasoning and Political Conflict 183 (1996). It is a firmer basis because it is more legitimately interpretive and escapes the criticism that it stretches the Constitution by giving quasi-constitutional status to principles such as “federalism” or “tribal autonomy” that may lurk in the interstices of the constitutional text but are not expressly protected. Interpreting — so not really amending — to avoid absurdities recognizes what sophisticated students of interpretation have been saying for at least a century and a half, see Francis Lieber, Legal and Political Hermeneutics 28-29 (enlarged ed. 1839), that a text is merely a clue, though an essential one, to the meaning of a communication; that meaning is inferred from the text and its context rather than being “in” the text in some simple sense. Suppose A says to B, “please give me a cup of coffee,” and" }, { "docid": "11754430", "title": "", "text": "Cutter v. Wilkinson, 423 F.3d 579, 584-90 (6th Cir.2005); Benning v. Georgia, 391 F.3d 1299, 1305-08 (11th Cir.2004); Charles v. Verhagen, 348 F.3d 601, 606-11 (7th Cir.2003); Mayweathers v. Newland, 314 F.3d 1062, 1066-70 (9th Cir.2002). A. The first Dole restriction is derived from the plain text of the Constitution: an exercise of the spending power must be in pursuit of “the general welfare.” U.S. Const, art. I, § 8, cl. 1. “In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.” Dole, 483 U.S. at 207, 107 S.Ct. 2793 (citation omitted). Here, Congress sought to protect prisoners’ religious liberty from unjustified and substantial burdens, see Cutter v. Wilkinson, 544 U.S. 709, 716-17, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), and we have no trouble concluding that RLUIPA’s “attempt to protect prisoners’ religious rights and to promote the rehabilitation of prisoners falls squarely within Congress’ pursuit of the general welfare.” Charles, 348 F.3d at 607. B. The second restriction placed on Congress’ spending power — that federally imposed conditions be stated unambiguously — emanates from the very structure of our system of governance. It is a fundamental rule of statutory construction that where “Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’ ” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)); see also Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The clear statement rule is particularly appropriate here because Spending Clause legislation is “much in the nature of a contract.” Arlington, 126 S.Ct. at 2459 (quoting Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531). “[T]o be bound by ‘federally imposed conditions,’ recipients of federal funds must accept them ‘voluntarily and knowingly.’ ” Id. States cannot, of course, knowingly accept conditions of which" }, { "docid": "11754431", "title": "", "text": "power — that federally imposed conditions be stated unambiguously — emanates from the very structure of our system of governance. It is a fundamental rule of statutory construction that where “Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’ ” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)); see also Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The clear statement rule is particularly appropriate here because Spending Clause legislation is “much in the nature of a contract.” Arlington, 126 S.Ct. at 2459 (quoting Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531). “[T]o be bound by ‘federally imposed conditions,’ recipients of federal funds must accept them ‘voluntarily and knowingly.’ ” Id. States cannot, of course, knowingly accept conditions of which they are unaware or cannot reasonably ascertain. Id. Accordingly, it is Congress’ burden to “affirmatively impos[e]” a “condition in clear and unmistakable statutory terms.” Va. Dep’t of Educ. v. Riley, 106 F.3d 559, 563 (4th Cir.1997) (en banc). To determine whether RLUIPA’s obligations apply to the States, we must therefore ask whether the statute “furnishes clear notice regarding the liability at issue in this case.” Arlington, 126 S.Ct. at 2459. See also Riley, 106 F.3d at 563. Here, the plain language of section 3 provides clear notice of RLUIPA’s religious liberty protections, stating: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-l(a). Congress provided equally clear notice that these conditions apply to State entities that accept federal prison funds. The statutory definition of government" }, { "docid": "12218345", "title": "", "text": "make its intention to do so “unmistakably clear in the language of the statute.” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984)____ Congress should make its intention “clear and manifest” if it intends to pre-empt the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), or if it intends to impose a condition on the grant of federal moneys, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 16, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981); South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 2796, 97 L.Ed.2d 171 (1987). “In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) (internal parallel citations omitted). We observed that pursuant to Supreme Court directives, “where application of a federal statute to a state ‘would upset the usual constitutional balance of federal and state powers[,] ... “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides” this balance.’ ” Torcasio, 57 F.3d at 1344-45 (alteration in original) (quoting Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400-01, 115 L.Ed.2d 410 (1991) (quoting Atascadero, 473 U.S. at 243, 105 S.Ct. at 3147-48)). In applying this “clear statement” principle, we determined that “[i]t cannot be disputed that the management of state prisons is a core state function.” Id. at 1345; see also id. (citing Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 1810-11, 40 L.Ed.2d 224 (1974) (holding that “[o]ne of" }, { "docid": "12226354", "title": "", "text": "of State Police, 491 U.S. 58, 65 (1989): if Congress intends to alter the “usual constitutional balance between the States and the Federal Government,” it must make its intention to do so “unmistakably clear in the language of the statute.” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171,... (1985); see also, Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 ... (1984). Because it found the operation of prisons to be a “core state function,” 57 F.3d at 1345, and because neither Section 504 nor Title II includes an express statement of its application to correctional facilities, the Torcasio court expressed its doubt that Congress had “clearly” intended either statute to apply to state prisons. Id. at 1346. This extension of the clear statement rule was unwarranted. Will, Atascadero, and Pennhurst all involved instances in which there had been no express waiver or abrogation of the state’s traditional immunity from suit, either by the state itself (Pennhurst), or by Congress (Will, Atascadero). Here, in contrast, both Section 504 and Title II of the ADA contain an “unequivocal expression of congressional intent to overturn the constitutionally guaranteed immunity of the several states.” Pennhurst, 465 U.S. at 99,104 S.Ct. at 907 (internal quotation marks and citation omitted); see 42 U.S.C. § 2000d-7(a)(l) (“A State shall not be immune under the Eleventh Amendment ... from suit in Federal court for a violation of section 504 of the Rehabilitation Act.”); id. § 12202 (“A State shall not be immune under the eleventh amendment ... from an action in Federal or State court of competent jurisdiction for a violation of [the ADA].”). To be sure, when “Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460, 461, 111 S.Ct. 2395, 2400, 2401, 115 L.Ed.2d 410 (1991) (internal quotation marks and citations omitted). This requirement, however, is a “rule of statutory" }, { "docid": "16479555", "title": "", "text": "Beck, 487 U.S. 735, 745, 108 S.Ct. 2641, 2648-49, 101 L.Ed.2d 634 (1988). But courts do not create exceptions to statutes every time it seems that the legislature overlooked something. The legislative role of the courts is more confined than that of the legislature. E.g., Seminole Tribe of Florida v. Florida, — U.S.-,-, 116 S.Ct. 1114, 1133, 134 L.Ed.2d 252 (1996); Commissioner v. Asphalt Products Co., 482 U.S. 117, 121, 107 S.Ct. 2275, 2277-78, 96 L.Ed.2d 97 (1987) (per curiam). The judges will create a statutory exception only when, as in the union-shop eases, it is necessary to save the statute from being held unconstitutional (see also, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 73, 115 S.Ct. 464, 469-70, 130 L.Ed.2d 372 (1994)), or when they have great confidence that the legislature could not have meant what it seemed to say, as may be the explanation for the Feres doctrine. The first criterion is really included in the second; the legislature presumably would not have wanted the statute struck down in its entirety. The state’s first argument for a judge-made exception straddles the two criteria. The argument is that Congress cannot invade an “essential state function,” such as prison administration, without a clear statement of its intent to invade it. “Clear statement” rules of statutory interpretation occupy an intermediate zone — some would say a no man’s land — between interpretations motivated by desire to avoid a constitutional challenge and interpretations motivated by desire to give effect to the legislature’s intentions. They give quasi-constitutional protection — quasi-constitutional because based on constitutional values but not an interpretation of the Constitution, and therefore subject to being overruled by Congress — to quasi-constitutional interests, such as the interest of the state in being allowed to perform the traditional core functions of state government without federal interference. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400-01, 115 L.Ed.2d 410 (1991); Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989); William N. Eskridge, Jr. & Philip P. Frickey," }, { "docid": "16479557", "title": "", "text": "“Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking,” 45 Vand.L.Rev. 593, 597 (1992). A parallel to that clear-statement rule is the rule that statutes will be interpreted so far as possible to avoid infringing the prerogatives of tribal Indian governments. See, e.g., United States v. Funmaker, 10 F.3d 1327, 1330-31 (7th Cir.1993); Reich v. Great Lakes Indian Fish & Wildlife Comm’n, 4 F.3d 490, 493, 495 (7th Cir.1993). The tribal interest in autonomy, like the state interest in autonomy that undergirds the principle of federalism (both being forms of comity, the mutual respect of sovereigns), is not a constitutional right. But it has a kind of constitutional dignity that the courts go out of their way to protect, whether or not they are right in supposing that Congress would not want the interest impaired unless it made its intentions to do so unmistakable. Prison administration is indeed a core function of state government, as is education. But the state’s concession that the Americans with Disabilities Act applies to the prison’s relations with its employees and visitors, as well as to the public schools, suggests that the clear-statement rule does not carry this particular core function of state government outside the scope of the Act. We doubt, moreover, that Congress could speak much more clearly than it did when it made the Act expressly applicable to all public entities and defined the term “public entity” to include every possible agency of state or local government. Maybe there is an inner core of sovereign functions, such as the balance of power between governor and state legislature, that if somehow imperiled by the ADA would be protected by the clear-statement rule, cf. Gregory v. Ashcroft, supra, 501 U.S. at 461-63, 111 S.Ct. at 2401-02; but the mere provision of public services, such as schools and prisons, is not within that inner core. The second and as it seems to us firmer basis for judgermade exceptions to statutes is where the exception is necessary to save the statute from generating absurd consequences. E.g., Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 454," }, { "docid": "13079994", "title": "", "text": "state “would upset the usual constitutional balance of federal and state powers[,] ... ‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides’ this balance.” Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2401, 115 L.Ed.2d 410 (1991) (quoting Atascadero, 473 U.S. at 243, 105 S.Ct. at 3147). See also United States v. Lopez, — U.S. -, -, 115 S.Ct. 1624, 1655, 131 L.Ed.2d 626 (1995) (Souter, J., dissenting) (clear statement rule applicable where case “implicat[es] Congress’s historical reluctance to trench on state legislative prerogatives or to enter into spheres already occupied by the States.”); Davies Warehouse Co. v. Bowles, 321 U.S. 144, 154, 64 S.Ct. 474, 480, 88 L.Ed. 635 (1944) (“The existence and force and function of established institutions of local government are always in the consciousness of lawmakers and, while their weight may vary, they may never be completely overlooked in the task of interpretation.”). It cannot be disputed that the management of state prisons is a core state function. As the Supreme Court has stated, “[i]t is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.” Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973). Indeed, it is elementary that “maintenance of penal institutions is an essential part” of one of government’s “primary functions” — “the preservation of societal order through enforcement of the criminal law.” Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). The fact that management of state prisons is a core function of the state sovereign, and is not presumptively subject to federal control, played a significant role in our recent decision in Harker v. State Use Industries, 990 F.2d 131 (4th Cir.), cert. denied, — U.S. -, 114 S.Ct. 238, 126 L.Ed.2d 192 (1993), in which we held that state prisoners involved in an employment skills development program in prison were not entitled to" }, { "docid": "14130473", "title": "", "text": "that Alaska should be precluded from doing so here. As preclusion principles are not jurisdictional, I will, reluctantly, reach the merits. . William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L.Rev. 593, 619-25 (1992) (describing the Court's \"super-strong clear statement rules”). As described by Professors Eskridge and Frickey, the Supreme Court has strengthened the clear statement rule in part because of its constrained review of federal legislation that intrudes on states' regulatory authority: \"[I]nasmuch as ... Garcia [v. San Antonio Metro. Trans. Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)] has left primarily to the political process the protection of the States against intrusive exercises of Congresses] Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.” Gregory, 501 U.S. at 464, 111 S.Ct. 2395. . Rather than expressing a desire to allow the Army Corps to assert jurisdiction over ponds and mudflats, Congress had \"recognize[d], preserve[d], and protected] the primary responsibilities and rights of States ... to plan the development and use ... of land and water resources....” Solid Waste, 121 S.Ct. at 684 (quoting 33 U.S.C. § 1251(b)); cf. 16 U.S.C. § 3202(a) (\"Nothing in this Act is intended to enlarge or diminish the responsibility and authority of the State of Alaska for management of fish and wildlife on the public lands except as may be provided in subchap-ter II of this chapter, or to amend the Alaska constitution.”); id. § 3202(b) (\"Except as specifically provided otherwise by this Act, nothing in this Act is intended to enlarge or diminish the responsibility and authority of the Secretary over the management of the public lands.”). . Judge Tallman suggests that we must ignore the term “title\" as used in the definition of public lands, as did Babbitt, or otherwise become “entangle[d]” in a syllogism where AN-ILCA does not apply to waters at all. See Tallman Concurrence at 5642. It’s true that neither Alaska nor the United States holds title to navigable waters. See Niagara Mohawk, 347 U.S. at 247 n. 10, 74" }, { "docid": "14130448", "title": "", "text": "required in this case. Professors Eskridge and Frickey astutely observe that the Supreme Court seems to have held that Congress may waive a state’s immunity from suit in federal court or interfere with a state’s core functions of self-governance only by making a “super-strong clear statement” of its intent to do so. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L.Rev. 593, 619-25 (1992). They note that each of these attributes of sovereignty derives directly from the Constitution, immunity from the Eleventh Amendment, and self-governance from the Tenth Amendment and the Guarantee Clause. Id. at 623. Professors Esk-ridge and Frickey do not argue, as the dissent suggests, that any federal statute that establishes federal regulation in an area traditionally controlled by the states requires a super-strong clear statement. The cases cited by the dissent also reflect the limited application of the super-strong clear statement rule. The cases that require a more rigorous application of the clear statement rule involve Eleventh Amendment immunity, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), and state self-governance, see Gregory, 501 U.S. at 460-61, 111 S.Ct. 2395 (requiring super-strong clear statement for federal regulation of “a decision of the most fundamental sort for a sovereign [state],” determination of the qualities of the state’s highest officers, a determination that “go[es] to the heart of representative government”); Coyle v. Smith, 221 U.S. 559, 565, 31 S.Ct. 688, 55 L.Ed. 853 (1911) (finding establishment of process for selecting location of the seat of state government “essentially and peculiarly state powers” that the federal government may interfere with, if at all, only by way of a super-strong clear statement). The dissent creates the illusion that the more exacting standard referred to as the super-strong clear statement rule applies in this case by mixing cases applying the rule with cases stating that ownership of the land underlying navigable waters is a traditional attribute of sovereignty. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 284, 117 S.Ct. 2028, 138" }, { "docid": "1264897", "title": "", "text": "into the lawmaking functions of the states, and argue by analogy that the same principles apply to Article III jurisdiction. See New York v. United States, — U.S. -, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (under the Tenth Amendment Congress may not compel the states to enact or administer a federal regulatory program); Gregory v. Ashcroft, 501 U.S. 452, 460-66, 111 S.Ct. 2395, 2401-03, 115 L.Ed.2d 410 (1991) (requiring “plain statement” in acts of Congress to override state decisions); Will v. Mich. Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) (requirement of a clear statement in legislation with intent to affect the federal balance); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (category of “traditional governmental function” is untenable standard for judicial decisions regarding state immunity under the Commerce Clause). Intervenors submit that Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) condemns a federal court in instructing state officials on how to conform their conduct to state law. We observe that the court was there called upon to determine whether the claim against the petitioners in carrying out their official duties violated state law and, therefore, is a claim against the state barred by the Eleventh Amendment. There is no suggestion in the case sub judice that the Consent Decree violates state law. On the contrary, its object was to require adherence to state law. Next, the Intervenors draw our attention to Kasper v. Bd. of Elections Comm’rs of City of Chicago, 814 F.2d 332 (7th Cir.1987), where the court quoted Pennhurst, 465 U.S. at 106, 104 S.Ct. at 911: “[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” 814 F.2d at 342. Inter-venors extrapolate this language as being applicable to this case. We find it to be clearly out of context. The court made it crystal clear in Kasper that “[t]he Republican" }, { "docid": "12218363", "title": "", "text": "for applying the clear statement rule — “all involved instances in which there had been no express waiver or abrogation of the state’s traditional immunity from suit.” Id. In contrast, the court opined, the ADA and the Rehabilitation Act each contain an express abrogation of the Eleventh Amendment ’ immunity of the States. See id. at 172-73 (citing 42 U.S.C.A. § 2000d-7(a)(l) (West 1994) (Rehabilitation Act); 42 U.S.C.A. § 12202 (West 1995) (ADA)). The court implicitly recognized that the clear statement rule has been applied by the Supreme Court in cases where there was an express abrogation, by Congress of the States’ Eleventh Amendment immunity, see, e.g., Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (holding that Missouri’s mandatory retirement requirement for state judges does not violate the Age Discrimination in Employment Act (ADEA)), and explicitly conceded that whenever “ ‘Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute,’” Yeskey, 118 F.3d at 173 (quoting Gregory, 501 U.S. at 460, 111 S.Ct. at 2400-01), and that “prison administration [is] a ‘core’ state function,” id. Notwithstanding these concessions, the court determined that the clear statement rule was inapplicable because, it concluded, Congress made clear in the language of the statutes that the ADA and the Rehabilitation Act apply to state prisons. See id. The court acknowledged the looming “specter of federal court management of state prisons,” resulting from application of the ADA and the Rehabilitation Act. Id. at 174; see also id. (“ ‘[I]f the ADA applies to routine prison decisions, it is not unfathomable that courts will be used to reconstruct cells and prison space, to alter scheduling of inmate movements and assignments, and to interfere with security procedures.’” (quoting Appellees’ Br. at 15)). The court held, however, that such concerns “do not override our conclusion that the ADA applies to prisons.” Id. The court concluded: “[O]ur holding does not dispose of the controversial and difficult question [of] whether principles of deference to" } ]

[ { "docid": "13500840", "title": "", "text": "because the Commission has no authority-to implement the statute in that respect. Plaintiff’s registration, as we have seen, was filed February 28, and by virtue of Section 8(a) became effective on Sunday, March 20. The proceedings under the stop order provision were begun the following day. The Commission’s notice to it, plaintiff insists, suspended the effectiveness of the registration and, since no sale of registered shares had then been consummated, the case is brought directly within the terms of the decision in Jones v. Securities & Exchange Commission, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015. The position of the Commission, on the other hand, is that, the registration being effective, the commencement of the stop order proceedings did not suspend the registration nor prohibit the sale of stock; that the latter result was possible only through a final order and that in the circumstances the Commission was bound by its rule, on the application for withdrawal, to weigh and consider the public interest. If the question were one of first impression, we would have no difficulty in declaring Rule 960 reasonable and within the Commission’s rule-making power. Nor would we have any greater difficulty in the present circumstances in sustaining a proper finding by the Commission of public interest as conclusive. But since the question arose and was discussed at length by the Supreme Court in the Jones case, it is necessary to examine that opinion to determine whether the facts there are so nearly parallel with the present case as to make the conclusion binding upon us. The registration in the Jones case related to unissued securities and had been on file for less than the statutory 20-day period when the stop order proceedings were begun. The present registration, on the other hand, related to securities already issued and outstanding and had ripened into an effective license to use the mails and facilities of interstate commerce before the Commission took any action. In holding that Jones had an absolute right to withdraw, the Supreme Court, as we think, rested its decision squarely on factors which differentiate that" } ]

[ { "docid": "4215531", "title": "", "text": "for relief. Fed.R.Civ.P. 12(b) (6). Examination of the record before the District Court satisfies us that the District Court’s action was correct. Appellant’s complaint for injunctive relief, in the context in which this case arises, can be read in no other way than an attempt to have the courts review the validity of the Commission’s interlocutory order initiating the stop order hearing which appellant seeks to enjoin. A brief consideration of appellant’s contentions will demonstrate why the District Court was correct in holding that the complaint did not assert a claim for relief cognizable by the District Court. First, appellant argues that the Commission has no power to issue a stop order against a pre-effective registration statement once the registrant has filed notice of his intention to withdraw the statement. This contention is jurisdictional insofar as it challenges the validity of SEC Rule 477, 17 C.F.R. 230.477 (1949), which provides that the consent of the Commission is a prerequisite for the withdrawal of a registration state ment. To preclude the Commission from enforcing a rule such as this would be to say that even a false statement in a registration statement is beyond the reach of the law if the registrant recalls his statement before inquiry can evaluate its truth, falsity or significance. Broad considerations of public policy, in addition to the need to protect investors, support the validity of Rule 477. We hold that Rule 477, as applied in this case, is valid. Resources Corporation International v. Securities and Exchange Commission, 70 App.D.C. 58, 103 F.2d 929 (1939); Columbia General Investment Corp. v. Securities and Exchange Commission, 265 F.2d 559 (5th Cir., 1959); Peoples Securities Co. v. Securities and Exchange Commission, 289 F.2d 268 (5th Cir., 1961). See Jones v. Securities and Exchange Commission, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015 (1936). Second, appellant contends that the Commission’s failure to comply with Administrative Procedure Act, § 9(b), 5 U.S.C. § 1008(b), makes any further proceeding vulnerable to jurisdictional attack. The Administrative Procedure Act, § 9(b), relates to the revocation of licenses. Appellant’s position is that a stop" }, { "docid": "4215532", "title": "", "text": "such as this would be to say that even a false statement in a registration statement is beyond the reach of the law if the registrant recalls his statement before inquiry can evaluate its truth, falsity or significance. Broad considerations of public policy, in addition to the need to protect investors, support the validity of Rule 477. We hold that Rule 477, as applied in this case, is valid. Resources Corporation International v. Securities and Exchange Commission, 70 App.D.C. 58, 103 F.2d 929 (1939); Columbia General Investment Corp. v. Securities and Exchange Commission, 265 F.2d 559 (5th Cir., 1959); Peoples Securities Co. v. Securities and Exchange Commission, 289 F.2d 268 (5th Cir., 1961). See Jones v. Securities and Exchange Commission, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015 (1936). Second, appellant contends that the Commission’s failure to comply with Administrative Procedure Act, § 9(b), 5 U.S.C. § 1008(b), makes any further proceeding vulnerable to jurisdictional attack. The Administrative Procedure Act, § 9(b), relates to the revocation of licenses. Appellant’s position is that a stop order proceeding against a pre-effective registration statement is in legal effect a revocation of a license within the statutory contemplation. Proceeding from that premise, appellant argues that the Commission failed to afford it an opportunity to achieve compliance prior to the institution of stop order proceedings. We express no opinion now as to the applicability of the Administrative Procedure Act, § 9, to stop order proceedings against pre-effective registration statements. However, assuming the applicability of that section, the Commission could still establish, at the hearing, that appellant’s activity was willful conduct or that it jeopardized the public interest, in which case there would be no requirement that appellant be given an opportunity to comply prior to proceedings. Appellant’s attack on the Commission’s conduct of its preliminary investigation is irrelevant for appellant seeks an injunction to terminate the stop order hearing, not the preliminary investigation whieh ended on July 27, 1962. Appellant’s claims relating to evidence allegedly seized in violation of the-Fourth Amendment and the challenge to the authority of the Commission to order a combined" }, { "docid": "23335946", "title": "", "text": "make the statements made, in the light of the circumstances under which they are made, not misleading * * . In general, the charges against appellant are that the Pearson offering exceeded the $300,000 statutory maximum because a substantial block of the stock was purchased by a director of appellant (and his family) for his own account, sold back to Holman at higher prices, and thereafter resold to the public by Holman at various prices in excess of the initial offering price. The Commission also claims that material used in connection with several offerings contained untrue statements. . This court denied a stay of the Commission’s administrative proceedings, pending review, as well as a stay of the effectiveness of Rule 252(e) (2). . It lias been held that only a “final order” is reviewable by a Court of Appeals under Section 9(a) of the Securities Act or Section 25(a) of the Securities and Exchange Act. See, e. g., Jones v. Securities and Exchange Commission, 79 F.2d 617 (2d Cir.), affirming Securities and Exchange Commission v. Jones, 12 F. Supp. 210 (S.D.N.X.1935), rev’d on other grounds, 298 U.S. 1, 56 S.Ct. 654, 80 D.Ed. 1015 (1936); Stardust, Inc. v. Securities and Exchange Commission, 225 F.2d 255 (9th Cir. 1955) (order for investigation); Securities and Exchange Commission v. Andrews, supra; Resources Corporation International v. Securities and Exchange Commission, 97 F. 2d 788 (7th Cir. 1938); Guaranty Underwriters, Inc. v. Securities and Exchange Commission, 131 F.2d 370 (5th Cir. 1942). . There is also some doubt as to whether, on petition to this court to review the order against it, Holman could test the validity of all the consequences of that order, including the restrictions imposed by Rule 252(e) (2). . In response to Holman’s motion in the District Court for declaratory and injunctive relief. Commission counsel moved to dismiss both because of lack of jurisdiction and for failure to state a cause of action. The order of Judge Tamm reads: “The cause having come on for hearing on plaintiff’s motion for preliminary injunction and defendants’ motion to dismiss the complaint for failure" }, { "docid": "2925296", "title": "", "text": "preliminary or procedural orders are not within the statutes providing for review by the Circuit Court of Appeals.” Petitioner relies upon Jones v. Securities Commission, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015, where the Court held that a registrant has an unqualified right to withdraw a registration statement prior to its effective date; that such effective date was effectually suspended by the official challenge of a stop order proceeding such as is here involved; and that since a registrant may withdraw his statement, the Commission has no discretion to deny him the exercise of that right. The question of the right to withdraw in that case, however, was presented by appeal from the order of the Court of Appeals affirming an order of the District Court directing the registrant to submit to examination pursuant to subpoena issued by the Securities and Exchange Commission. It is clear that our jurisdiction over this cause, if any, arises out of the petition to review the order of the Commission. Since we hold, on the authority of Jones v. Securities and Exchange Comm., 2 Cir., 79 F.2d 617, that that order is not a reviewable one, our jurisdiction over the cause fails, and other relief, incidental to the petition for review, must likewise fail. The petition for review is, therefore, dismissed,, and the order restraining the Commission from proceeding with further hearings, directing it to show cause,-and to certify to this court the record of its proceedings, is vacated." }, { "docid": "796255", "title": "", "text": "commerce channels. The registration provision, Section 5, is designed to give investors adequate and accurate information in the form of a “registration statement” that is a public record for twenty days. Originally, this twenty-day\" period Vi as to give the public an opportunity to inform itself; there were to be no sales diiring this time. ' Underwriters and dealers weré to furnish prospective investors with a brochure based on the information in the registration statement. Although the basic pattern of the statute is still the same, the statute was amended in 1954 to permit certain kinds of offers (but not sales) during the twenty-day waiting period. II. Petitioners rely on Jones v. Securities and Exchange Commission, 1936, 298 U.S. 1, 56 S.Ct. 654, 663, 80 L.Ed. 1015, as authority for an applicant’s absolute right to withdraw a registration application. In Jones the Supreme Court held ■that as a matter of right a registration statement under the Securities Act of 1933 may be withdrawn before its effective date, at least when no rights of investors are involved. The decision appears to give the registrant the power to terminate the Commission’s jurisdiction to investigate the correctness and completeness of a statement. The Jones case was one of the major defeats of New Deal legislation. In assailing the action of the Commission, Mr. Justice Sutherland, organ of the Supreme Court, compared the Commission’s investigation to the ‘intolerable abuses of the Star Chamber”. Mr. Justice Cardozo, dissenting, suggested, “Historians may find hyperbole in the sanguinary simile”. The Jones decision has never been overruled. But history — or Congress — has indeed found the simile hyperbolic. Jones was engaged in selling oil royalties. He filed a registration statement with the Commission covering a proposed issue of participating trust certificates. The statement would have become effective at the end of twenty days. 48 Stat. 74, amended, 48 Stat. 905 (1934), 15 U.S. C.A. § 77a et seq. The Commission questioned the truth and sufficiency of his statement. The day before the registration would have become effective, the Commission instituted stop order proceedings and issued a subpoena" }, { "docid": "627589", "title": "", "text": "supra. But by a succession of permissible “delaying amendments” the effective date was repeatedly postponed. Prior to the effective date, Columbia, on June 27, 1956, requested consent of SEC to withdraw the Registration pursuant to Rule 477, note 1, supra. SEC denied this on June 29 and simultaneously issued an order for hearing under Section 8(d), as well as other sections of the Act, for July 10, 1956. By agreement the hearing was postponed. On August 15, a few days prior to the adjourned hearing, Columbia filed a substantive amendment to the Registration, together with a request for postponement of the hearing to permit examination of the amendment by the staff of SEC and for a conference with the staff thereafter. This was followed August 20 with another formal application to withdraw the Registration, and this was formally renewed after the Examiner’s report. By these means and a formal motion to dismiss, Columbia adequately preserved its basic contention of lack of jurisdiction in SEC and alternatively an abuse of discretion under Rule 477, note 1, supra, if it were legally applicable. As the alpha and omega of its argument, as its constant rod and staff, Columbia cleaves to Jones v. Securities & Exchange Commission, 1936, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015, as absolutely controlling. We agree with Columbia that, in the final analysis, the case is decisive, although in quite a different way from its contention. Columbia asserts that it is the classic case of a perfectly matching precedent which on stare decisis compels reversal. Because the case is emphatic in its ruling, our approach is to determine whether on facts and subsequent statutory developments, the parallel is really there. Finding differences of sufficient character, we conclude that the case is not mandatorily controlling. Once we determine that our action is not precisely circumscribed by Jones, we have no doubt that the orders of SEC withstand the attacks made here. In Jones the registrant, on the 19th day, one day prior to the effective date, requested permission of SEC to with -draw the Registration statement under the" }, { "docid": "4215538", "title": "", "text": "8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.” See SEC General Rule 473, 17 C.P.R. 230.473 (Supp.1962). . The Commission’s rules make its consent a prerequisite to withdrawal of a registration statement. 17 C.F.R. 230.477 (1949). The Commission, in its brief, construes the issuance of an order fixing a hearing under § 8(d) of the Securities Act of 1933, infra n. 3, as a denial of the application to withdraw the registration statement. . Securities Act of 1933, § 8(d), 15 TJ.S.C. § 77h(d) (1958) authorizes the Commission to “issue a stop order suspending the effectiveness of [a] registration statement” for the sale of securities when it appears that such statement includes false statements or omissions of material facts. However, the stop order may not issue until after the Commission has given the registrant an opportunity to be heard. . “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.” See Leedom v. Kyne, 358 U.S. 184, 187, 79 S.Ct. 180, 183, 3 L.Ed.2d 210 (1958); Stark v. Wickard, 321 U.S. 288, 290 n. 1, 64 S.Ct. 559, 88 L.Ed. 733 (1944); Amos Treat & Co. v. Securities and Exchange Commission, 113 U.S.App.D.C. 100, 306 F.2d 260 (1962). Compare R. A. Holman & Co. v. Securities and Exchange Commission, 112 U.S.App.D.C. 43, 299 F.2d 127, cert. denied, 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1962). . The Commission contends on appeal that the District Court denied the petition on the grounds of lack of jurisdiction. Our reading of the memorandum opinion of the District Judge convinces us that the Commission’s interpretation is incorrect. . A stop order issued at the culmination of proceedings is subject to direct review in the Court of Appeals. 15 U.S.C. § 77i; Oklahoma-Texas Trust v. Securities and Exchange Commission, 100 F.2d 888 (10th Cir., 1939)." }, { "docid": "627590", "title": "", "text": "supra, if it were legally applicable. As the alpha and omega of its argument, as its constant rod and staff, Columbia cleaves to Jones v. Securities & Exchange Commission, 1936, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015, as absolutely controlling. We agree with Columbia that, in the final analysis, the case is decisive, although in quite a different way from its contention. Columbia asserts that it is the classic case of a perfectly matching precedent which on stare decisis compels reversal. Because the case is emphatic in its ruling, our approach is to determine whether on facts and subsequent statutory developments, the parallel is really there. Finding differences of sufficient character, we conclude that the case is not mandatorily controlling. Once we determine that our action is not precisely circumscribed by Jones, we have no doubt that the orders of SEC withstand the attacks made here. In Jones the registrant, on the 19th day, one day prior to the effective date, requested permission of SEC to with -draw the Registration statement under the predecessor of Rule 477. This was denied and the SEC undertook to hold a stop order hearing. On registrant’s refusal to attend the hearings, SEC sought and obtained in the district court orders compelling attendance and production of records. After affirmance by the Court of Appeals, the Supreme Court reversed. After concluding that notice of a stop order hearing by SEC had the effect of keeping the Registration from becoming effective, the Court then analogized the resulting situation to an equitable action in which, save for rare extraordinary factors not there present, the plaintiff has the unconditioned right of dismissal prior to answer, it held that the registrant had the absolute right to withdraw the Registration statement prior to its effective date. Although invited by SEC to reject Jones because the Supreme Court itself has cast great doubts on the continued vitality of the case — a possibility which this Court and others have discussed— and then treat it as impliedly overruled, we find it unnecessary to accept or decline the invitation. Accepting the opinion" }, { "docid": "4215530", "title": "", "text": "the suggestion of the Commission the argument of this appeal from the District Court was expedited and is now before us on the merits. The Commission volunteered to suspend the hearing until the appeal was decided. The primary contention of the Commission in the District Court and on appeal is that the District Court lacks jurisdiction to enjoin the Commission from conducting stop order hearings not yet begun. Appellant contends that absent judicial review until after the agency hearing on the merits irreparable injury would result. It points to the effect that a stop order proceeding would have on appellant’s ability to secure capital and claims that the stop order would have to be set aside on appeal because of a denial of due process by the Commission. This allegation would seem to be sufficient to invoke the equity jurisdiction of the District Court under 28 U.S.C. § 1337. The District Court denied the petition for preliminary injunction not because of lack of jurisdiction of the subject matter but for failure to state a claim for relief. Fed.R.Civ.P. 12(b) (6). Examination of the record before the District Court satisfies us that the District Court’s action was correct. Appellant’s complaint for injunctive relief, in the context in which this case arises, can be read in no other way than an attempt to have the courts review the validity of the Commission’s interlocutory order initiating the stop order hearing which appellant seeks to enjoin. A brief consideration of appellant’s contentions will demonstrate why the District Court was correct in holding that the complaint did not assert a claim for relief cognizable by the District Court. First, appellant argues that the Commission has no power to issue a stop order against a pre-effective registration statement once the registrant has filed notice of his intention to withdraw the statement. This contention is jurisdictional insofar as it challenges the validity of SEC Rule 477, 17 C.F.R. 230.477 (1949), which provides that the consent of the Commission is a prerequisite for the withdrawal of a registration state ment. To preclude the Commission from enforcing a rule" }, { "docid": "8106375", "title": "", "text": "1410, 93 L.Ed. 1451 (1949). See also authorities cited note 9 infra. . 48 Stat. 899 (1934), 15 U.S.C.A. § 78u. . See Schmidt v. United States, 198 F.2d 32 (7th Cir. 1952), cert. denied, 344 U.S. 896, 73 S.Ct. 276, 97 L.Ed. 693 (1952). . See R. A. Holman & Co. v. Securities & Exchange Comm., 112 U.S.App.D.C. 43, 299 F.2d 127, cert. denied, 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1962). Cf. Hannah v. Larche, 363 U.S. 420, 446-448, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). Exhibits attached to the Commission’s motion to dismiss may have been adequate for this purpose. They reveal that investigations by the Commission in cooperation with the Quebec Securities Commission turned up evidence that Ku-katush shares were unlawfully distributed in the United States in 1959, 1960 and 1961. In addition, those exhibits show that a registration statement covering an issue of Kukatush stock was filed in 1961. It was withdrawn when the company learned the Commission planned to institute stop order proceedings because the statement was believed to be “false and fraudulent.” . See generally 17 SEC Ann.Rep. 159 (1957); Pollock & Timbers, Extradition from Canada to the United States for Securities Fraud: Frustration of the National Policies of Both Countries, 24 Fordham L.Rev. 301 (1955). . See Holman v. Securities & Exchange Comm., supra note 7. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Hannah v. Larche, 363 U.S. 420, 488, 492, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1980) (Frankfurter, J., concurring) (dictum). But cf. Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). . Brief for the Commission, p. 7. The procedure was announced after this suit began in SEC Securities Act Release No. 4407 (1961). Appellant was not required to follow the procedure before bringing this action, however. See Administrative Procedure Act § 3(a), 60 Stat. 238 (1946), 5 U.S.C.A. § 1002(a)." }, { "docid": "4335999", "title": "", "text": "relief. Herrup v. Stoneham, 15 F.(2d) 49 (C. C. A. 2); France & Canada S. S. Co. v. French Republic, 285 F. 290 (C. C. A. 2); Gas & Electric Securities Co. v. Manhattan & Queens Traction Corporation, 266 F. 625, 632 (C. C. A. 2). These principles have been applied to interlocutory rulings of administrative tribunals. Chamber of Commerce of Minneapolis v. Federal Trade Commission, 280 F. 45 (C. C. A. 8). We do not think that Congress intended by any provision of this act to permit reviews by the Circuit Courts of Appeals of interlocutory and procedural orders entered by the Securities and Exchange Commission. The stop order hearings authorized by the act are summary proceedings for the protection of investors against misrepresentation and omissions of a registration statement. We think it is when a final order is entered as a result of the hearings that the act intends the appellant might have a right of review of that determination. No order under section 8 (b) of the act (15 USCA § 77h, subd. (b) was entered and the registration here became effective May 24th. It remained effective since no stop order was issued under section 8 (d), 15 USCA § 77h, subd. (d). Under such circumstances the denial of a motion to withdraw the registration reflected no injury upon the appellant. The motion to dismiss the petition to review is granted. Appellant appeals from an order directing him to appear and testify before the commission regarding his registration statement. It was entered pursuant to section 22 (b) of the act (15 USCA § 77v, subd. (b). The answer of the appellant sets up the invalidity of the statute on constitutional grounds and also denies jurisdiction of the commission to make the application after his motion to dismiss. If he could withdraw his registration by a mere request, it would end the effect of filing it and there is no authority under section 19 (b), 15 USCA § 77s, subd. (b) to issue the commission subpoena and it could not be enforced by order of the District Court" }, { "docid": "4215533", "title": "", "text": "order proceeding against a pre-effective registration statement is in legal effect a revocation of a license within the statutory contemplation. Proceeding from that premise, appellant argues that the Commission failed to afford it an opportunity to achieve compliance prior to the institution of stop order proceedings. We express no opinion now as to the applicability of the Administrative Procedure Act, § 9, to stop order proceedings against pre-effective registration statements. However, assuming the applicability of that section, the Commission could still establish, at the hearing, that appellant’s activity was willful conduct or that it jeopardized the public interest, in which case there would be no requirement that appellant be given an opportunity to comply prior to proceedings. Appellant’s attack on the Commission’s conduct of its preliminary investigation is irrelevant for appellant seeks an injunction to terminate the stop order hearing, not the preliminary investigation whieh ended on July 27, 1962. Appellant’s claims relating to evidence allegedly seized in violation of the-Fourth Amendment and the challenge to the authority of the Commission to order a combined proceeding under the authority of Securities Act of 1933, § 8(e), 15 U.S.C. § 77h(e), and Securities Exchange Act § 21(a), 15 U.S.C. § 78u(a), neither of which is jurisdictional in nature, must first be made to the Commission before they are ripe for judicial, examination. R. A. Holman & Co. v. Securities and Exchange Commission, 112 U.S.App.D.C. 43, 299 F.2d 127, 130, cert. denied, 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1962). See also Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 251, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Neisloss v. Bush, 110 U.S.App.D.C. 396, 293 F.2d 873 (1961). We are not unmindful that a stop order proceeding is a drastic regulatory-measure but it is equally clear that Congress intended to vest broad power in the Commission. The Commission has-evolved many informal devices to- aid applicants to fulfill the registration requirements of the Act. One for example is the letter of comment which affords a basis for a registrant to correct errors and supply deficiencies. It is a" }, { "docid": "4215537", "title": "", "text": "prevent abuse or misuse of power by prior restraint of the exercise of the powers. Instead judicial review after full hearing was accorded. While this does not preclude judicial restraint in advance of the administrative process in all circumstances, such relief is to be very sparingly applied and is limited to cases where on its face the contemplated hearing or other administrative process, if consummated, would be set aside on review on procedural grounds. Amos Treat & Co. v. Securities and Exchange Commission, 113 U.S.App.D.C. 100, 306 F.2d 260, 265 (1962); Farmer v. United Elec., Radio & Machine Workers, 93 U.S.App.D.C. 178, 211 F.2d 36 (1953), cert. denied, 347 U. S. 943, 74 S.Ct. 638, 98 L.Ed. 1091 (1954). The judgment of the District Court denying the injunction is Affirmed. . “The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.” See SEC General Rule 473, 17 C.P.R. 230.473 (Supp.1962). . The Commission’s rules make its consent a prerequisite to withdrawal of a registration statement. 17 C.F.R. 230.477 (1949). The Commission, in its brief, construes the issuance of an order fixing a hearing under § 8(d) of the Securities Act of 1933, infra n. 3, as a denial of the application to withdraw the registration statement. . Securities Act of 1933, § 8(d), 15 TJ.S.C. § 77h(d) (1958) authorizes the Commission to “issue a stop order suspending the effectiveness of [a] registration statement” for the sale of securities when it appears that such statement includes false statements or omissions of material facts. However, the stop order may not issue until after the Commission has given the registrant an opportunity to be heard. . “The district courts shall have original jurisdiction of any civil action or proceeding arising" }, { "docid": "627606", "title": "", "text": "of preventing a registration statement from becoming effective. Buie 473 of SEC’s rules provides: “An amendment altering the proposed date of the public sale may be made by telegram or letter.” 17 C.F.R. | 280.478 (1949). Columbia periodically filed amendments changing the proposed offering date to a date to be “decided upon” or “determined” after the effective dato of the registration statement. . “(d) If it appears to the Commission at any time that the registration statement includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statement therein not misleading, the Commission inay, after notice by personal service or the sending of confirmed telegraphic notice, and after opportunity for hearing (at a time fixed by the Commission) within fifteen clays after such notice by personal service or the sending of such telegraphic notice, issue a stop order suspending the effectiveness of the registration statement. When such statement has been amended in accordance with such stop order, the Commission shall so declare and thereupon the stop order shall cease to be effective.” 15 U.S.C.A. § 77h(d). . The order recited that the hearing and investigation was being ordered pursuant to Sections 5, 8(d), 17(a) and 20(a) of the Securities Act of 1988, 15 U.S.C.A. §§ 77e, 77h(d), 77q(a), 77t(a), Sections 10 (b), 15 and 21(a) of the Securities Exchange Act of 1934, 15 U.S.C.A. 78j(b), 78(o), 78u, and Sections 7 and 42(a) of the Investment Company Act of 1940, 15 U.S.C.A. §§ 80a-7, 80a-41(a). . In United States v. Morton Salt Co., 1950, 338 U.S. 632, 642, 70 S.Ct. 357, 364, 94 L.Ed. 401, the Court remarked: “More recent views have been more tolerant of [the administrative process] than those which underlay many older decisions. Compare Jones v. S.E.C., 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015 with United States v. Morgan, 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211.” . In Lansky v. Savoretti, 5 Cir., 1955, 220 F.2d 906, 909-910, this Court observed: “The district judge in the Minker" }, { "docid": "12194023", "title": "", "text": "was not proceeding against the appellants in excess of its jurisdiction. The circumstances which gave rise to the case were the following. On May 4, 1964, M. G. Davis & Co., Inc. filed a notice of withdrawal from registration with the Commission’s Washington office. Under Rule 15b-6 of the Commission’s Rules and Regulations, 17 C.F.R. See. 240-15b-6, authorized by Sec. 15(b) of the Securities Exchange Act, 15 U.S.C. § 78o(b), such a notice becomes effective on the thirtieth day after filing, unless the Commission, prior to that date, “institutes a proceeding” to revoke or suspend registration or impose conditions on withdrawal. On June 2, 1964, the last day in which it could act under the rule, the Commission adopted an order to commence private proceedings against M. G. Davis & Co., Inc., to determine whether remedial action was necessary. The following day a notification telegram was sent to M. G. Davis & Co., Inc. and, on June 4, 1964, a copy of the order was mailed. On August 4, 1965, after 15 months of investigation, the Commission instituted public proceedings against the appellants and others, alleging that they had violated Sec. 17(a) of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U.S.C. Sec. 77q (1959) and Sec. 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. Sec. 78j (1959). Appellants contended before the district court, as they do here, that the Commission’s institution of private proceedings came too late to prevent the withdrawal from becoming effective, because proceedings were not in fact instituted until notice was sent to M. G. Davis & Co., Inc., and therefore the private proceedings were void and could not serve as a jurisdictional basis for the public proceedings against M. G. Davis & Co., Inc. Furthermore, they contended, the amendment to the Securities Exchange Act upon which the Commission’s jurisdiction to hold proceedings against the individual appellants depended, Act of Aug. 20, 1964, 78 Stat. 570, adding Sec. 15(b) (7) to the Act, 15 U.S.C. Sec. 78o(b) (7), was not applicable to persons who had committed violations prior" }, { "docid": "796254", "title": "", "text": "Commission is to assure that the statement is accurate and complete. The Exchange Act differs from the Securities Act primarily in that it applies to post-distribution trading. The Exchange Act has three basic purposes: to require dealers to disclose certain basic information to the investing public; to regulate the securities markets; and to control the amount of the nation’s credit that goes into those markets. All stock exchanges must register with the SEC (unless exempted by the Commission), and no security may be listed on an exchange unless its issuer files an application for registration both with the exchange and with the SEC. The application contains information similar to that required by the Securities Act for new issues. Over-the-counter brokers and dealers must .also register with the Commission, maintain records and file statements of financial condition. The legislation accomplishes its aims by the requirement of registration and by an anti-fraud provision, enforceable by injunction and criminal sanctions. The anti-fraud provision, Section 17, applies whenever a security is sold by use ■of the mails or interstate commerce channels. The registration provision, Section 5, is designed to give investors adequate and accurate information in the form of a “registration statement” that is a public record for twenty days. Originally, this twenty-day\" period Vi as to give the public an opportunity to inform itself; there were to be no sales diiring this time. ' Underwriters and dealers weré to furnish prospective investors with a brochure based on the information in the registration statement. Although the basic pattern of the statute is still the same, the statute was amended in 1954 to permit certain kinds of offers (but not sales) during the twenty-day waiting period. II. Petitioners rely on Jones v. Securities and Exchange Commission, 1936, 298 U.S. 1, 56 S.Ct. 654, 663, 80 L.Ed. 1015, as authority for an applicant’s absolute right to withdraw a registration application. In Jones the Supreme Court held ■that as a matter of right a registration statement under the Securities Act of 1933 may be withdrawn before its effective date, at least when no rights of investors are" }, { "docid": "2925295", "title": "", "text": "files of the Commission, but shall be plainly marked with the date of the giving of such consent and in the following manner: “ ‘Withdrawn upon request of the registrant, the Commission consenting thereto.' ” Precisely the same question as is here presented was presented to the Circuit Court of Appeals for the Second Circuit in Jones v. Securities and Exchange Comm., 79 F.2d 617. The court there held that an interlocutory order of the Securities and Exchange Commission refusing permission to withdraw a registration statement was not within the purview of section 9, and that that section did not confer jurisdiction upon the court to review such an order. It therefore dismissed the petition to review the order. The Supreme Court denied certiorari from this decision (297 U.S. 705, 56 S.Ct. 497, 80 L.Ed. 993), and subsequently cited it in Federal Power Commission v. Metropolitan Edison Co. et al., 58 S.Ct. 963, 82 L.Ed.-, decided May 23, 1938, as authority for its statement that “ * * * it has been held that mere preliminary or procedural orders are not within the statutes providing for review by the Circuit Court of Appeals.” Petitioner relies upon Jones v. Securities Commission, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015, where the Court held that a registrant has an unqualified right to withdraw a registration statement prior to its effective date; that such effective date was effectually suspended by the official challenge of a stop order proceeding such as is here involved; and that since a registrant may withdraw his statement, the Commission has no discretion to deny him the exercise of that right. The question of the right to withdraw in that case, however, was presented by appeal from the order of the Court of Appeals affirming an order of the District Court directing the registrant to submit to examination pursuant to subpoena issued by the Securities and Exchange Commission. It is clear that our jurisdiction over this cause, if any, arises out of the petition to review the order of the Commission. Since we hold, on the authority of" }, { "docid": "21379271", "title": "", "text": "commenced revocation proceedings against Keystone and its principal officer. Part of the charges asserted against Keystone were claims of alleged prior violations charged to Shasta and Mr. Stoker. f. In conjunction with the commencement of these administrative proceedings, Mr. Orval L. DuBois, Secretary for the Commission, prepared a news release summarizing the charges made in the order for the revocation proceedings which included assertions that Shasta Minerals & Chemical Company and K. L. Stoker had made untrue statements of material facts in their registration statement and otherwise had violated the securities laws. Exhibit C attached to the complaint is a copy of such release. g. Based upon the release, a newspaper article was published, Exhibit D, which discussed the charges made by the Commission’s staff to the effect that the Shasta registration statement “contains false and misleading information”. h. Thereafter, ineffective attempts were made to have the Commission change the administrative proceedings to a private hearing instead of public. The proceedings were finally settled on a negotiated basis. Under the terms of the settlement which were set forth in Exhibits 8 and 9 attached to the defendants’ answer herein, Keystone Securities Corporation and M. Russell Ballard, Jr., without admitting or denying the allegations made against them in the order for proceedings, consented to a finding that Ballard and Keystone Securities Corporation willfully violated Sections 7 and 10 of the Securities Act of 1933, that Keystone Securities Corporation, aided and abetted by Ballard, willfully violated Sections 15(b) and 17(a) of the Securities Exchange Act of 1934 and Rules 15b-8 and 17a-3 thereunder, that it was in the public interest to revoke Keystone’s registration as a broker-dealer, and that Ballard was a cause of the revocation. Under the offer of settlement the Commission dismissed the charges of violations of Section 17(a) of the Securities Act of 1933 and Sections 10(b) and 15(c) (1) of the Securities Exchange Act of 1934 and Rules 10b-5 and 15cl-2 thereunder. HAWAIIAN PROCEEDINGS i. On October 24, 1962, an investigation order was issued by the Securities and Exchange Commission in the matter of Silver King Mines, Inc.," }, { "docid": "796250", "title": "", "text": "WISDOM, Circuit Judge. The sole question on this appeal is whether the Securities and Exchange Commission acted properly in denying an applicant’s motion for withdrawal of its application for registration as a broker-dealer and for dismissal of the administrative proceeding on the application. The case turns on statutory construction and the applicability of Jones v. Securities and Exchange Commission, 1936, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015. We affirm. The petitioners are (1) Peoples Securities Company, a Texas corporation, (2) L. B. Hartgrove, Sr., Robert Macy Compton, Clifford Bryant Renegar, officers, directors and controlling stockholders of Peoples, and (3) Union Trust Company, a stockholder of Peoples controlled by Hartgrove. Petitioners seek review of an order of the Securities and Exchange Commission, entered under authority of Section 15 of the Securities Exchange Act of 1934, as amended, 15 U.S.C.A. § 78o. The order (1) denied an application of Peoples for registration as a broker and dealer, (2) found Hartgrove, Compton, Renegar, and Union each a cause of the order denying registration, and (3) denied Peoples’s motion to cancel or withdraw its application for registration and to dismiss the proceeding. The Commission based its order on findings of willful violation of the statute. These findings are not challenged. The petitioners’ contention may be broken down into two parts: (1) Peoples has the absolute right to withdraw its application any time before the effective date of the registration statement and, (2) under the language of the Exchange Act, the Commission is required to cancel the application since Peoples had ceased to do business and was dissolved as a corporation. Before discussing these points it is necessary to review the controlling statutory provisions. I. The purpose of the Securities Exchange Act of 1934 (Exchange Act), as stated in its preamble, is to “provide for the regulation of securities exchanges and of over-the-counter markets * * to prevent inequitable and unfair practices on such exchanges and markets”. 48 Stat. 881. Section 15 deals with the regulation of the over-the-counter market. Section 15(a) requires brokers and dealers engaged in securities transactions on the over-the-counter" }, { "docid": "12194022", "title": "", "text": "ANDERSON, Circuit Judge: This is an action against the individual members of the Securities and Exchange Commission by a registered broker-dealer, its two sole stockholders and a securities salesman. The appellants complained that the Commission had unlawfully refused to allow M. G. Davis & Co., Inc. to withdraw as a registered securities dealer-broker under Sec. 15(b) of the Securities Exchange Act of 1934, 48 Stat. 896, as amended by 49 Stat. 1378 (1936), 15 U.S.C. Sec. 78o(b) (1959), and was maintaining proceedings against M. G. Davis & Co., Inc., the individual appellants and others, without having jurisdiction to do so. The appellants demanded that M. G. Davis & Co., Inc. be declared withdrawn from registration and that the Commission be enjoined from maintaining further proceedings against any of the appellants. Accordingly they moved for a preliminary injunction under Rule 65, Fed. R.Civ.P. The Commission, however, cross-moved for summary judgment, and the district court granted its motion. The order entered reflected the trial court’s decision on the merits of the legal issues involved that the Commission was not proceeding against the appellants in excess of its jurisdiction. The circumstances which gave rise to the case were the following. On May 4, 1964, M. G. Davis & Co., Inc. filed a notice of withdrawal from registration with the Commission’s Washington office. Under Rule 15b-6 of the Commission’s Rules and Regulations, 17 C.F.R. See. 240-15b-6, authorized by Sec. 15(b) of the Securities Exchange Act, 15 U.S.C. § 78o(b), such a notice becomes effective on the thirtieth day after filing, unless the Commission, prior to that date, “institutes a proceeding” to revoke or suspend registration or impose conditions on withdrawal. On June 2, 1964, the last day in which it could act under the rule, the Commission adopted an order to commence private proceedings against M. G. Davis & Co., Inc., to determine whether remedial action was necessary. The following day a notification telegram was sent to M. G. Davis & Co., Inc. and, on June 4, 1964, a copy of the order was mailed. On August 4, 1965, after 15 months of investigation," } ]

[ { "docid": "18605458", "title": "", "text": "After finding that the Lindseys failed to produce such evidence, the district court granted Sears’s motion, and the Lindseys appeal. II On appeal, the Lindseys argue that the district court erred in granting summary judgment in favor of Sears. Specifically, they contend that because this is a negligence action, summary judgment is inappropriate because the question of the reasonableness of the defendant’s conduct is a question for the jury. They further contend that the district court improperly determined the credibility of witnesses. We review de novo a district court’s grant of summary judgment, viewing the record in the light most favorable to the non-movant. Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir.1987). When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2558, 91 L.Ed.2d 265 (1986). However, where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Id. at 322, 106 S.Ct. at 2553-54; see also, Moody v. Jefferson Parish School Board, 2 F.3d 604, 606 (5th Cir.1993); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir.1991). Only when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party” is a full trial on the merits warranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Initially, the Lindseys make the blanket assertion that summary judgment is inappropriate in negligence cases because such eases require the trier to pass upon the reasonableness of the defendant’s conduct in determining whether that conduct constitutes negligence. This is generally true, see Gauck v. Meleski 346 F.2d 433, 437 (5th Cir.1965), provided that the plaintiff has produced, with" } ]

[ { "docid": "15496738", "title": "", "text": "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); see also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir.2008). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be an absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “material” if its resolution could affect the outcome of the action. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir.2007). “[A]nd a fact is genuinely in dispute only if a reasonable jury could return a verdict for the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir.2006). The moving party bears the initial burden of informing the court of all evidence demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only when the moving party has discharged this initial burden does the burden shift to the non-moving party to demonstrate that there is a genuine issue of material fact. Id. at 322, 106 S.Ct. 2548. If the moving party fails to meet this burden, then it is not entitled to summary judgment and no defense to the motion is required. Id. “For any matter on which the non-movant would bear the burden of proof at trial ..., the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir.1995); see also Celotex, 477 U.S. at 323-25, 106 S.Ct. 2548. To prevent summary judgment, “the non-moving party must come forward with ‘specific facts showing that there" }, { "docid": "20285109", "title": "", "text": "AND DISMISSED WITH PREJUDICE. I. Summary Judgment Standard “A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof.” Fed. R. Civ. Proc. 56(b). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. Proc. 56(c). When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed. R. Civ. Proc. 56(e). As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994): When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Id. at 322, 106 S.Ct. 2548; see also, Moody v. Jefferson Parish School Board, 2 F.3d 604, 606 (5th Cir.1993); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir.1991). Only when “there is sufficient evidence favoring the nonmoving party for a jury to" }, { "docid": "20285110", "title": "", "text": "summary judgment, if appropriate, shall be entered against the adverse party. Fed. R. Civ. Proc. 56(e). As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994): When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Id. at 322, 106 S.Ct. 2548; see also, Moody v. Jefferson Parish School Board, 2 F.3d 604, 606 (5th Cir.1993); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir.1991). Only when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party” is a full trial on the merits warranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Supreme Court has instructed: The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Where no such showing is made, “[t]he moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” ... In ruling upon a Rule 56 motion, “a District Court must resolve any factual issues of controversy in favor of the non-moving party” only in the sense that, where the facts specifically averred by that party contradict" }, { "docid": "11578589", "title": "", "text": "affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Assn., Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252, 106 S.Ct. at 2512. Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Moreover, “the trial" }, { "docid": "17961834", "title": "", "text": "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 summaiy judgment as a matter of law.” Fed.R.Civ.P. 56(c). The entry of summaiy judgment is proper even when \"[there is a] mere existence of some alleged factual dispute between the parties [which would not] defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 673 (1st Cir.1996) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)). Furthermore, [once] the summary judgment is made and supported as provided by this rule, an adverse party may not rest upon mere allegations or denials of the adverse party’s pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. [Furthermore,][i]f the adverse party does not respond, summaiy judgment, if appropriate shall be entered against the adverse party. Fed.R.Civ.P. 56(e). \"An issue is genuine if it ‘must be decided at trial because the evidence, viewed in the light most flattering to the non movant, would permit a rational fact finder to resolve the issue in favor of either party’.\" Mulero-Rodríguez, 98 F.3d at 673 (citing Medina-Muñoz, 896 F.2d at 8 (1st Cir.1990)). See also Wyner v. North American Specialty Ins. Co., 78 F.3d 752, 754 (1st Cir.1996). The party moving for summary judgment bears the initial burden of proof to show \"that there is an absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thereafter, the burden shifts to the non-movant to provide the Court, through the filing of supporting affidavits or similar documentation, with \"some indication that he can produce the quantum of evidence to enable him to reach the jury with his claim.” Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir.1975)." }, { "docid": "4839831", "title": "", "text": "discharge complaints in this count. II. STANDARD OF REVIEW Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” when a reasonable jury could return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is “material” when it could affect the outcome of the case under the governing law. Id. A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party’s burden can be met simply by demonstrating “to the district court that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. After the moving party has met its initial burden, “the adverse party’s response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Summary judgment is therefore appropriate when the nonmoving party fails to rebut by making a factual showing “based on the affidavits or by depositions and admissions on file” that is “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992). Celotex sets forth the basic presumption that summary judgment is only appropriate “after adequate" }, { "docid": "17222406", "title": "", "text": "that the Act requires scienter before liability attaches. II. Before considering the merits of the parties’ arguments, a brief review of the relevant legal standards for summary judgment is useful to help frame the issues. Summary judgment is proper “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). Regarding materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the litigation under governing law will preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Regarding genuineness, a dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. The party seeking summary judgment bears the initial burden of showing that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91, L.Ed.2d 265 (1986). This burden does not require the moving party to produce evidence showing the absence of a genuine issue of material fact, but only to point out the absence of a material fact. Id. In response, the non-moving party “may not rest upon the mere allegations or denials of the adverse party’s pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 817 (4th Cir.1995). The non-movant’s failure to do so requires summary judgment be granted. Strag v. Board of Trustees, 55 F.3d 943, 951 (4th Cir.1995). The mere existence of a scintilla of evidence in support of Plaintiffs case will be insufficient; there" }, { "docid": "8363911", "title": "", "text": "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 summary judgment as a matter of law.” The First Circuit has determined that summary judgment is appropriate even when “[there is a] mere existence of some alleged factual dispute between the parties [which would not] defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 673 (1st Cir.1996) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)). Furthermore, [once] the summary judgment is made and supported as provided by this rule, an adverse party may not rest upon mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. [Furthermore,] [i]f the adverse party does not respond, summary judgment, if appropriate shall be entered against the adverse party. Fed.R.Civ.P. 56(e). ‘‘An issue is genuine if it ‘must be decided at trial because the evidence, viewed in the light most flattering to the non movant, would permit a rational fact finder to resolve the issue in favor of either party’.” Mulero-Rodríguez, 98 F.3d at 673 (citing Medina-Muñoz, 896 F.2d at 8 (1st Cir.1990)). See also Wyner v. North American Specialty Insurance Co., 78 F.3d 752, 754 (1st Cir.1996). The party filing a motion for summary judgment bears the initial burden of proof to show “that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Thereafter, the burden shifts to the non-movant to provide the Court, through the filing of supporting affidavits or otherwise, with “some indication that he can produce the quantum of evidence to enable him to reach the jury with his claim.” Hahn v. Sargent, 523 F.2d 461, 468" }, { "docid": "14461329", "title": "", "text": "Bridal or May. STANDARD OF REVIEW Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue of material fact is genuine if “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, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment will be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment has the burden of demonstrating that there are no genuine issues of material fact. Id. at 322-23, 106 S.Ct. 2548. If the moving party sustains the burden, the nonmoving party must set forth facts demonstrating the existence of a genuine issue for trial. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. When a properly supported motion for summary judgment is made, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The adverse party must raise “more than a mere scintilla of evidence in its favor” in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). However, the “existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against [the moving party].” Ely v. Hall’s Motor Transit Co., 590" }, { "docid": "13458779", "title": "", "text": "summary adjudication of each of plaintiffs’ remaining claims. Plaintiffs have moved for summary adjudication of defendants’ affirmative defenses. II. Standard Summary judgment or summary adjudication is only proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party meets its initial burden, the “adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. Proc. 56(e), Summary judgment is appropriate where the nonmoving party fails to make a sufficient showing on an essential element of the case on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. Plaintiffs’ Claim for False Endorsement Plaintiffs’ complaint alleges that defendants’ use of the image and title of Princess Diana falsely implies an endorsement by, association with, or affiliation with the Estate and the Fund in violation of 15 U.S.C. § 1125(a). Plaintiffs do not allege that defendants use a particular photograph, depiction or image of Princess Diana. Instead, they contend that any use of Princess Diana’s image or the words “Diana, Princess of Wales” by defendants falsely implies endorsement by the Estate or the Fund. Although plaintiffs have marks of their own, they have framed their claim as one for false endorsement based on the use of Princess Diana’s image" }, { "docid": "8074451", "title": "", "text": "the moving party is entitled to a judgment as a matter of law [...]. Rule 56(e) specifies the materials properly submitted in connection with a motion for summary judgment: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein [...]. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and sup ported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass’n, 909 F.2d 941, 943-44 (6th Cir.1990). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evi-dentiary standards. Thus, in most civil cases the Court must decide “whether reasonable jurors could find by a preponderance of" }, { "docid": "11101964", "title": "", "text": "agreed to hold in abeyance the deadlines set forth in that scheduling order pending the outcome of the Plaintiffs Motion for Summary Judgment. The Court has reviewed the pleadings and the record in this case and does not believe a hearing will aid the decisional process. For the reasons set forth below, the Motion will be denied. Standard for Summary Judgment Rule 56 of the Federal Rules of Civil Procedure, made applicable to this adversary proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure, provides: “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c). The Rule further provides: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment if appropriate, shall be entered against the adverse party.” Fed. R. Civ. Proe. 56(e). One of the principal purposes of summary judgment is to isolate and dispose of all factually unsupported claims or defenses. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To that end, the Court considers all evidence in a light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (all justifiable inferences are drawn in the nonmovant’s favor). The mere existence of an alleged factual dispute does not defeat a motion for summary judgment; rather the standard requires that there be no genuine issue of material fact. Id. at 247-48, 106 S.Ct. 2505. Only disputes over the facts that might" }, { "docid": "9767483", "title": "", "text": "in this rule an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but must set forth specific facts showing there is a genuine issue for trial.” Even where there is no opposition, a motion for summary judgment cannot be granted simply because the non-movant has not responded, even if the failure to respond violates a local rule. Hibernia Nat'l Bank v. Admin. Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985). Both movants and non-movants bear burdens of proof in the summary judgment process. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant with the burden of proof at trial must establish every essential element of its claim or affirmative defense; however, if the issue is one on which the movant does not bear the burden of proof at trial, summary judgment is warranted if the non-movant fails to make a sufficient showing to establish the existence of each element essential to its case. Id. at 322-23, 106 S.Ct. at 2552. In so doing, the moving party without the burden of proof need only point to the absence of evidence on an essential element of the non-movant’s claims or affirmative defenses. Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2554. At that point, the burden shifts to the non-moving party to produce evidence in support of its claims or affirmative defenses by affidavits or by “ ‘depositions, answers to interrogatories and admissions on file,’ [to] designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324, 106 S.Ct. at 2553. The non-moving party must produce “specific facts” showing a genuine issue for trial, not mere general allegations. Fed. R.Civ.P. 56(e); Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir.1978). The nonmovant has failed to meet this standard if its response merely shows that “there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). If no such evidence is produced," }, { "docid": "13519254", "title": "", "text": "of Georgia Holdings, Inc. is the ninety-nine percent (99%) limited partner of Peachford Hospital. UHS of Georgia Holdings, Inc. has never had any employees. (Id. ¶ 13.) II. SUMMARY JUDGMENT STANDARD Summary judgment shall be “rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of “informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact.” Rice-Lamar v. City of Fort Latiderdale, 232 F.3d 836, 840 (11th Cir.2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). “Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The non-moving party then “may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see also Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (non-movant then required “to go beyond the pleadings” and present competent evidence in form of affidavits, depositions, admissions and the like, designating “specific facts showing that there is a genuine issue for trial”). Generally, “[t]he mere existence of a scintilla of evidence” supporting the non-movant’s case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). If in response the non-moving party does not sufficiently support an essential element of his case as to which he bears the burden of proof, summary judgment is appropriate. Rice-Lamar, 232 F.3d at 840. “In determining" }, { "docid": "9349859", "title": "", "text": "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), made applicable to this adversary proceeding by Fed. R. Bankr.P. 7056. In a motion for summary judgment, the moving party “always bears the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party has made a proper motion for summary judgment, the burden shifts to the non-moving party, pursuant to Rule 56(e), which states, “[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” Fed R. Civ. P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party opposing the motion “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Before a court will find that a dispute about a material fact is genuine, there must be sufficient evidence upon which a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must view the facts and draw inferences in a light most favorable" }, { "docid": "6631368", "title": "", "text": "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 Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir.2008). Upon a de fendant’s motion for summary judgment, the plaintiff “must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Fed. R. Crv. P. 56(e). Ultimately, “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue is “material” if its resolution could affect the outcome of the action. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir.2007). “[A]nd a fact is genuinely in dispute only if a reasonable jury could return a verdict for the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir.2006). The moving party bears the initial burden of informing the court of all evidence demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only when the moving party has discharged this initial burden does the burden shift to the non-moving party to demonstrate that there is a genuine issue of material fact. Id. at 322, 106 S.Ct. 2548. If the moving party fails to meet this burden, then it is not entitled to a summary judgment, and no defense to the motion is required. Id. “For any matter on which the non-movant would bear the burden of proof at trial ..., the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Transamerica Ins. Co." }, { "docid": "736627", "title": "", "text": "Court lacks subject matter jurisdiction over this claim because the facts and allegations of this case do not warrant the extraterritorial application of the Lanham Act. Plaintiff contends that none of these arguments has merit. Plaintiff also asks for a continuance, under Federal Rule of Civil Procedure 56(f), to engage in discovery that will allow him to more fully oppose Defendants’ Motion. II. LEGAL STANDARD A. Motion for Summary Judgment The party moving for summary judgment has the initial burden of establishing that there is “no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Fed. R. Civ. Pro. 56(c); see British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978); Fremont Indemnity Co. v. California Nat’l Physician’s Insurance Co., 954 F.Supp. 1399, 1402 (C.D.Cal.1997). If, as here, the non-moving party has the burden of proof at trial, the moving party has no burden to negate the opponent’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party does not have the burden to produce any evidence showing the absence of a genuine issue of material fact. Id. at 325, 106 S.Ct. 2548. “Instead, ... the burden on the moving party may be discharged by ‘showing’— that is, pointing out to the district court— that there is an absence of evidence to support the nonmoving party’s case.” Id. (citations omitted). Once the moving party satisfies this initial burden, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings.... [T]he adverse party’s response ... must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. Pro. 56(e) (emphasis added). A “genuine issue” of material fact exists only when the non-moving party makes a sufficient showing to establish the essential elements of that party’s case, and on which that party would bear the burden of proof at trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. “The mere existence of a scintilla of evidence in support" }, { "docid": "17084798", "title": "", "text": "material fact and that the moving party is entitled to a judgment as a matter of law ... The nature of materials properly presented in a summary judgment pleading is set . forth in Federal Rule of Civil Procedure 56(e): Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein ... The court may permit affidavits to be supplement ed or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing summary judgment motions, this Court must view the evidence in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Assn., Inc., 909 F.2d 941, 943-44 (6th Cir.1990). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. Thus, in most civil cases" }, { "docid": "8183077", "title": "", "text": "477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Facts are deemed material if they might affect the outcome of the case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, the moving party’s submission must foreclose the possibility of the existence of facts from which it would be open to a jury to make inferences favorable to the non-movant. Id. In deciding a summary judgment motion, the court must view the record as a whole and in the light most favorable to the non-moving party. Terry’s Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir.1985). Either party may submit as evidence “pleadings, depositions, answers to interrogatories, and admissions on file, together with ... .affidavits” to support or rebut a summary judgment motion. Fed. R.Civ.P. 56(c). Supporting and opposing affidavits must be based on personal knowledge and must set forth facts that would be admissible in evidence. Id. at 56(e). Furthermore, the party moving for summary judgment need not supply “affidavits or other similar materials negating the opponent’s claim.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. When a motion for summary judgment is made and supported with affidavits as it is in this ease, however, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e). Rule 56 mandates a grant of summary judgment against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party’s ease and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The party who bears the burden of proving a particular element of a claim must “designate ‘specific facts showing there is a genuine issue for trial’ ” with respect to that element. Id. at 324, 106 S.Ct. at" }, { "docid": "4418520", "title": "", "text": "of material fact must be resolved by the Court against the movant. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); J.F. Freeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.1990); see also 10A C. Wright, et al., Federal Practice and Procedure § 2727 (1983). If the movant satisfies this onerous burden, the burden shifts to the nonmovant to proffer evidence sufficient to create a genuine issue of material fact at trial. When the nonmovant does not bear the burden of proof on the issue for which summary judgment is sought, as in the present case, the nonmovant may withstand summary judgment by proffering evidence sufficient to create a genuine issue of material fact as to any element essential to the movant’s case. Rule 56(c) provides that “[w]hen a motion for summary judgment is made and supported [by evidence] ... an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” Fed. R.Civ.P. 56(c); see also Advisory Committee Notes to the 1963 Amendment of Rule 56, reported in 31 F.R.D. 648 (1963). Therefore, the nonmovant may withstand summary judgment only by the proffer of evidence which demonstrates the existence of a genuine issue of material fact. An issue of material fact is genuine only “if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Because Liberty Mutual seeks summary judgment on the grounds that insurance coverage for the claims at issue is foreclosed by the pollution exclusion" } ]

[ { "docid": "15032720", "title": "", "text": "of arguments and counter-arguments raised by the parties, in almost 350 pages of memoranda of law, in support of and in opposition to the motions to dismiss or significantly to redact plaintiffs’ first amended Complaint. Were it necessary to address all of these - arguments point by point, the Court would not shy away from the task. However, the Court is bound by recent Supreme Court and Second Circuit precedent, and must dismiss the action in its entirety based on the statute of limitations established in Lampf. The Court therefore does not reach the merits of these arguments. DISCUSSION A. Federal Securities Law Claims On June 20, 1991, the Supreme Court decided Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. —, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). Lampf followed the decision of the Second Circuit in Ceres Partners v. GEL Assoc., 918 F.2d 349 (2d Cir.1990), and reached the same result as the Second Circuit, imposing “a uniform federal statute of limitations for actions brought under section 10b of the Securities and Exchange Act [sic] of 1934.” Welch v. Cadre Capital, 946 F.2d 185, 186 (2d Cir.1991). Thus, the statute of limitations for section 10(b) and Rule 10b-5 actions now provides that: No action shall be maintained to enforce any liability created under this section, unless brought within one year after the discovery of the facts constituting the violation and within three years after such violation (“one year/three year period”). See Lampf, 111 S.Ct. at 2782 n. 9 (adopting standard in § 9(e) of the Exchange Act as limitations period for actions under § 10(b)). Lampf interpreted this limitations period as establishing an absolute three year time-bar for actions under section 10(b). Whereas equitable tolling generally applies in fraud cases, the doctrine does not apply to claims for securities fraud under section 10(b). “The three year limit is a period of repose inconsistent with tolling_ Because the purpose of a 3-year limitation is clearly to serve as a cutoff, we hold that tolling principles do not apply to that period.” Lampf, 111 S.Ct. at 2782. The primary" } ]

[ { "docid": "18016980", "title": "", "text": "& Co., Inc., 791 F.Supp. 327, 331 (D.Mass. 1992) (holding in a securities fraud case that “[defendant’s] denial of wrongdoing should not have deterred this plaintiff from pursuing its inquiry into the matter where the plaintiff was on inquiry notice that it had been defrauded”); see also Blue Cross of California v. Smithkline Beecham Clinical Laboratories, Inc., 108 F.Supp.2d 116,124 (D.Conn.2000) (holding, in a common law fraud case, that statute of limitations would not be tolled simply because defendant denied any fraudulent acts); Pocahontas Supreme Coal Co., Inc. v. Bethlehem Steel Corp., 828 F.2d 211, 218-219 (4th Cir.1987) (affirming dismissal of Sherman Act claims on grounds that statute of limitations would not be tolled simply because defendant “fail[ed] to own up to illegal conduct”). D. The Doctrine of Equitable Tolling Does Not Apply to § 10(b) Claims In the seminal decision of Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 2782, 115 L.Ed.2d 321 (1991) the Supreme Court unequivocally held that “the equitable tolling doctrine is fundamentally ineon-sistent” with the statute of limitations structure applicable to § 10(b) claims. Equitable tolling is inconsistent with the discovery period because if a defendant actively conceals a fraud, then plaintiff will not discover the facts suggesting the violation and the statute will not begin to run, making tolling unnecessary. Dafofin Holdings S.A. v. Hotelworks.com, Inc., No. 00 Civ. 7861(LAP), 2001 WL 940632, at * 5 (S.D.N.Y. Aug.17, 2001) (Preska, J.). Equitable tolling is also fundamentally inconsistent with the repose period because that limit is “ ‘clearly to serve as a cutoff and it would have no significance as an outside limit if it could be tolled.” Friedman v. Wheat First Sec. Inc., 64 F.Supp.2d 338, 345 (S.D.N.Y.1999) (Ward, J.) (quoting Lampf, 501 U.S. at 363, 111 S.Ct. 2773). Thus, plaintiffs’ contention that the doctrine of equitable tolling would apply to render their belatedly filed claims timely is entirely without merit. III. PLAINTIFFS HAVE FAILED TO ALLEGE FACTS INDICATING SCIENTER Often lost in the enormous muddle of securities litigation is this most basic of facts: not every" }, { "docid": "5325935", "title": "", "text": "§ 9 claim on representations that stock would go higher, plaintiffs claim was properly a § 13 claim; court noted difficult question implicit in different language of § 9; Prompt and gradual fall of stock should have placed plaintiff on notice under § 13). Several courts, relying on the express language in § 9(e), have determined that “inquiry notice” does not apply to 10(b) and Rule 10b-5 cases after Lampf. See In re Digital Microwave Corp. Securities Litigation, No. E-90-20241RUW (EAI), 1992 WL 370831 (N.D.Cal. Oct. 19, 1992); Werner v. Satterlee, Stephens, Burke & Burke, 797 F.Supp. 1196 (S.D.N.Y.1992); Slavin v. Morgan Stanley & Co., Inc., 791 F.Supp. 327 (D.Mass.1992); Hauman v. Illinois Power Co., No. 89-1130, 1991 WL 354887 (C.D.Ill. Aug. 29, 1991) (decided prior to Anixter). In selecting § 9(e), the Supreme Court “did not necessarily indicate a preference for the type of notice of the violation but sought a ‘governing’ standard to link the implied § 10(b) remedy to those express securities causes of action which uniformly require [claims be brought] one year after notice of the violation and not more than three years after the violation.” Anixter, 947 F.2d at 899. The. Seventh Circuit’s discussion of this limitation in Short v. Belleville Shoe, 908 F.2d at 1385, which applied the inquiry notice standard, was cited in Lampf with approval. Anixter, 947 F.2d at 899 n. 4. In Lampf, the Supreme Court rejected application of the equitable tolling doctrine because the doctrine is “fundamentally inconsistent with the l-and-3-year structure” of § 9(e). — U.S. at --■, 111 S.Ct. at 2782. The Hauman court (prior to Anixter) found this holding relevant to the interpretation of “discovery” under § 9(e) and rejected inquiry notice. 1991 WL 354887 at *1. The Hau-man court pointed to the Supreme Court’s statement that “[t]he 1-year period, by its terms, begins after discovery of the facts constituting the violation, making tolling unnecessary. The 3-year limit is a period of repose inconsistent with tolling.” Id. (emphasis added). Therefore, the Hauman court reasoned, under § 9(e), the one-year limit is essentially “tolled” to a maximum of" }, { "docid": "2419233", "title": "", "text": "v. Great Am. Comms. Co., 823 F.Supp. 1409, 1415 (N.D.Ill.1993) (“A party cannot both have inquiry notice and merit equitable tolling.”); Manning v. Maloney, 181 F.Supp. 433, 436 (M.D.Pa.1992) (“Equitable tolling under the doctrine of fraudulent concealment does not apply to [Securities and Exchange Act] actions.”); In re Rospatch Sec. Litig., Nos. 90 Civ. 805, 90 Civ. 806, 90 Civ. 85, 1991 WL 335253 (W.D.Mich. Oct. 11, 1991) (“Lampf overruled any equitable tolling in prior law.”). The Second Circuit recognized this limitation on equitable tolling in Dodds v. Cigna, 12 F.3d 346 (2d Cir.1993), in which it held that where, as here, a plaintiff is on inquiry notice, the statutory period is “tolled” only so long as the plaintiffs have “exercised reasonable care and diligence in seeking to learn the facts which would disclose fraud.” Id. at 350; see Dafofin, 2001 WL 940632; Siemens, 1994 WL 86368. Thus, although the plaintiffs are not entitled to an equitable tolling of the statute of limitations, the Court must consider their allegations concerning Pace’s attempt to conceal his identity and involvement in the statute of limitations equation. The Court has determined that as of October 9, 1996, the plaintiffs were on inquiry notice of the probability that they had been defrauded and, thus, had a duty to exercise reasonable diligence in investigating the alleged fraud, which duty commenced on that date. See Rothman v. Gregor, 220 F.3d 81, 97 (2d Cir.2000); Dodds, 12 F.3d at 350. Because Pace was added as a defendant on February 17, 1999, for the plaintiffs’ complaint to be timely, a reasonable investor of ordinary intelligence conducting a reasonably diligent investigation must have been unable to discover Pace’s involvement in the fraud prior to February 18, 1998. See 15 U.S.C. §§ 77m, 78i(e). Thus, the question presently before the Court is whether a reasonable investor of ordinary intelligence performing a reasonably diligent investigation into the facts underlying Sterling Foster’s scheme should have discovered Pace’s involvement in the scheme prior to February 17, 1998. See Rothman, 220 F.3d at 97 (holding that where the plaintiff has received inquiry notice, the" }, { "docid": "18016996", "title": "", "text": "the first complaint was not filed until May 10, 2002, over 2 years later. . See eToys Opp. Br. at 19-22; Homestore Opp Br. at 16-17 & n. 7; iVillage Opp. Br. at 12 n. 7; LifeMinders Opp. Br. at 8-10 & n. 6; LookSmart Opp. Br. 12-13 & n. 7; Openwave Opp. Br. at 15 & n. 5; Pets.com Opp. Br. at 18-20; Quokka Sports Opp. Br. at 16-18 & n. 8. . See e.g. Homestore Opp Br. at 15; iVillage Opp. Br. at 10-11; LifeMinders Opp. Br. at 8-9; LookSmart Opp. Br. 12; Openwave Opp. Br. at 14-15; Quokka Sports Opp. Br. at 17-18. . \"[O]n a motion to dismiss, a court may consider ... 'matters as to which judicial notice may be taken.’ ” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (quoting Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993)). The Court may take judicial notice of newspaper articles for the fact of their publication without transforming the motion into one for summary-judgment. See In re Sterling Foster & Co., Inc. Sec. Litig., 222 F.Supp.2d 312, 321 (E.D.N.Y.2002); Schwenk v. Kavanaugh, 4 F.Supp.2d 116, 118 (N.D.N.Y.1998). . The Supreme Court in that decision was applying the 1- and 3-year structure that was changed by the Sarbanes-Oxley Act. However, the reasoning of the Supreme Court is also applicable to the 2- and 5-year structure which may govern some plaintiffs' claims; thus, the Court finds it controlling with respect to all Complaints. . Some courts in the Second Circuit have held that if an investor undertakes an inquiry upon being placed on inquiry notice of a probable fraud, but is frustrated in that inquiry by the defendants fraudulent concealment of the violation, then the doctrine of equitable tolling may apply even in a § 10(b) claim. See Dodds, 12 F.3d at 350; Falik v. Parker Duryee Rosoff & Haft, 869 F.Supp. 228, 233 (S.D.N.Y.1994) (Motley, J.) (\"[E]quitable tolling stays the statute of limitations under Rule 10b-5 only as long as the defrauded party satisfies his duty to exercise reasonable diligence to" }, { "docid": "6374938", "title": "", "text": "closed in May or June of 1988 and that the parties conducted no further transactions after this date. Nazareth Reply Aff. ¶ 4 and Ex. 1 (Charles Romanoffs final account statement). Plaintiffs brought this lawsuit in April 1993, more than three years after the date that defendants claim Mr. Komanoff closed his account. Since plaintiffs have not provided any evidence that Mr. Komanoff closed his account later than June 1988 or that he traded with Mabon after this date, we conclude for proposes of defendants’ summary judgment motion that Mr. Romanoffs Rule 10b-5 claim is barred by the statute of limitations. od of repose inconsistent with tolling” and “can have no significance ... other than to impose an outside limit.”) (citations omitted). Despite plaintiffs’ protestations to the contrary, we believe that this reasoning holds even when the plaintiffs failure to bring suit within three years is due to fraudulent concealment by the defendant. See In re Integrated Resources, Inc., 851 F.Supp. 556, 566-67 (S.D.N.Y.1994) (stating that the Lampf Court held that the 3-year rule “is absolute and cannot be tolled under the ‘fraudulent concealment’ or ‘discovery’ doctrines.”). b. Hannah Komanoff Defendants concede that Hannah Komanoff closed her account in October 1990, bringing her April 1993 lawsuit within the three-year period of Lampf. See Tr. at 3. Nevertheless, argue defendants, Ms. Romanoffs Rule 10b-5 claims should be time-barred under Lampf s one-year prong, which requires suits to be brought within one year after discovery of the facts constituting the violation. See Lampf 501 U.S. at 361, 111 S.Ct. at 2781. Discovery under this prong includes not only actual notice, but also constructive and inquiry notice. See Dodds v. Cigna Secs., Inc., 12 F.3d 346, 349 (2d Cir. 1993), cert. denied, — U.S.-, 114 S.Ct. 1401, 128 L.Ed.2d 74 (1994). Defendants argue that Ms. Romanoffs acknowledged receipt of monthly statements from Mabon, see Amended Complaint ¶32-33, as well as written confirmations of each trade, see .id. ¶ 32, were sufficient to put her on inquiry notice of any alleged churning by defendants. In addition, defendants point to the two letters from Mabon," }, { "docid": "6374937", "title": "", "text": "v. First Investors Corp. 981 F.2d 649, 653 (2d Cir.1992). Under this rule, a Rule 10b-5 claim must be brought within one year after discovery of the facts constituting the violation and within three years of such violation. Lampf, 501 U.S. at 359-60, 111 S.Ct. at 2780. a. Charles Komanoff To avoid the three-year bar, Mr. Komanoff urges that the running of that limitation period should be tolled due to fraudulent concealment on the part of defendants that prevented plaintiffs from discovering defendants’ wrongdoing. Mr. Komanoff offers no relevant caselaw in support of this proposition, and we reject it in light of the Lampf decision. In Lampf the Supreme Court held that the three year cutoff for Section 10(b) claims is absolute, reasoning that “the equitable tolling doctrine is fundamentally inconsistent with the l-and-3-year structure.” Lampf 501 U.S. at 363, 111 S.Ct. at 2782 (explaining that “[t]he 3-year limit is a peri- Although the Amended Complaint does not specify when Charles Romanoffs account with Mabon was closed, defendants have provided evidence that this account was closed in May or June of 1988 and that the parties conducted no further transactions after this date. Nazareth Reply Aff. ¶ 4 and Ex. 1 (Charles Romanoffs final account statement). Plaintiffs brought this lawsuit in April 1993, more than three years after the date that defendants claim Mr. Komanoff closed his account. Since plaintiffs have not provided any evidence that Mr. Komanoff closed his account later than June 1988 or that he traded with Mabon after this date, we conclude for proposes of defendants’ summary judgment motion that Mr. Romanoffs Rule 10b-5 claim is barred by the statute of limitations. od of repose inconsistent with tolling” and “can have no significance ... other than to impose an outside limit.”) (citations omitted). Despite plaintiffs’ protestations to the contrary, we believe that this reasoning holds even when the plaintiffs failure to bring suit within three years is due to fraudulent concealment by the defendant. See In re Integrated Resources, Inc., 851 F.Supp. 556, 566-67 (S.D.N.Y.1994) (stating that the Lampf Court held that the 3-year rule “is" }, { "docid": "6374948", "title": "", "text": "should dismiss Ms. Romanoffs Rule 10b-5 claims pursuant to Rule 9(b) because the Amended Complaint fails to allege when she discovered the alleged churning or fraud. This date of discovery is relevant to the issue of whether Ms. Komanoff had actual notice of defendants’ violations more than one year prior to the date that she brought her lawsuit and is therefore time barred from bringing her claims under Lampf. See 501 U.S. at 361, 111 S.Ct. at 2781. Although it is true that the Amended Complaint fails to allege the date of discovery, we do not believe that this omission is grounds for dismissing plaintiffs’ claims under Rule 9(b). See Sperber Adams Assocs. v. JEM Management Assocs. Corp., 90 Civ. 7405, 1992 WL 138344, at *2 (S.D.N.Y. June 4, 1992) (finding no requirement to affirmatively plead compliance with statute of limitations under Rule 10b — 5); Balsam v. Eastchester Fin. Corp., No. 90 C 2947, 1991 WL 41901, at *3 (E.D.N.Y. Mar. 20, 1991) (same); see also Tregenza v. Great Am. Communications Co., 12 F.3d 717, 718 (7th Cir.1993) (reasoning that a rule requiring plaintiffs in Rule 10b-5 suits to affirmatively plead compliance with statute of limitations “makes no sense”), cert. denied, — U.S. -, 114 S.Ct. 1837, 128 L.Ed.2d 465 (1994); Commercial Insur. Co. v. Krain, 843 F.Supp. 404, 407 (N.D.Ill.1994) (“A plaintiffs discovery of fraudulent behavior is clearly not one of the circumstances which ‘constitutes’ the fraud. As a result, Rule 9(b) simply does not apply....”); cf. In re Chaus Secs. Litig., 801 F.Supp. 1257, 1270 (S.D.N.Y. 1992) (stating that it is “unclear” whether a failure to affirmatively plead compliance with the statute of limitations is grounds for dismissal under Section 10(b)). But see Maywait v. Parker & Parsley Petroleum Co., 808 F.Supp. 1037, 1050 (S.D.N.Y.1992) (“[T]o adequately plead § 10(b) violations, the plaintiff must aver compliance with the one year/ three year statute of limitations.”). Since Ms. Komanoff has in any case subsequently stated in her affidavit that she discovered defendants’ alleged wrongdoings within one year of the date she brought this action, we think it inappropriate" }, { "docid": "11360204", "title": "", "text": "and the application of reliance where the alleged wrongful conduct is nonrepresentational under Rule 10b-5(a) and (c), illuminating and helpful and hereby adopts its approach. C. Limitations and Tolling regarding § 12(a)(2) Claims The Financial Institutions have blurred the distinction between legal tolling under the class action tolling doctrine and equitable tolling or the fraudulent concealment doctrine; they refer to both as equitable tolling. They are not the same. See, e.g., Joseph v. Wiles, 223 F.3d 1155, 1166-68 (10th Cir.2000); Ballard v. Tyco Int’l Ltd., No. MDL 02-MD-1335-PB, Civ. 04-CV-1336-PB, 2005 WL 1683598, *7 (D.N.H. July 11, 2005); In re Discovery Zone Sec. Litig., 181 F.R.D. 582, 600 (N.D.Ill.1998); Salkind v. Wang, No. Civ. A. 93-10912-WGY, 1995 WL 170122, *2-3 (D.Mass. Mar.30, 1995); Mott v. R.G. Dickinson and Co., No. 92-1450-PFK, 1993 WL 63445, *5 (D.Kan. Feb.24, 1993); In re Activision Sec. Litig., No. C-83-4639(A)MHP, 1986 WL 15339, *2-5 (N.D.Cal. Oct.20, 1986). Equitable tolling may be applied where a plaintiff timely files a defective pleading or has been tricked by his opponent’s misconduct into not filing before the deadline. Joseph, 223 F.3d at 1166. In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), the Supreme Court held that “litigation ... must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation” of § 10(b). The three-year period is a statute of repose. The high court further held that equitable tolling does not apply to statutes of repose. Id. at 363, 111 S.Ct. 2773. Under the class action tolling doctrine established in American Pipe and Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) (“the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action”), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 352-55, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the filing of" }, { "docid": "6374939", "title": "", "text": "absolute and cannot be tolled under the ‘fraudulent concealment’ or ‘discovery’ doctrines.”). b. Hannah Komanoff Defendants concede that Hannah Komanoff closed her account in October 1990, bringing her April 1993 lawsuit within the three-year period of Lampf. See Tr. at 3. Nevertheless, argue defendants, Ms. Romanoffs Rule 10b-5 claims should be time-barred under Lampf s one-year prong, which requires suits to be brought within one year after discovery of the facts constituting the violation. See Lampf 501 U.S. at 361, 111 S.Ct. at 2781. Discovery under this prong includes not only actual notice, but also constructive and inquiry notice. See Dodds v. Cigna Secs., Inc., 12 F.3d 346, 349 (2d Cir. 1993), cert. denied, — U.S.-, 114 S.Ct. 1401, 128 L.Ed.2d 74 (1994). Defendants argue that Ms. Romanoffs acknowledged receipt of monthly statements from Mabon, see Amended Complaint ¶32-33, as well as written confirmations of each trade, see .id. ¶ 32, were sufficient to put her on inquiry notice of any alleged churning by defendants. In addition, defendants point to the two letters from Mabon, which Ms. Komanoff concedes that she received and signed in 1988, warning her about losses in her account. See Amended Complaint ¶ 46. These letters,’ defendants argue, should also have put Ms. Komanoff on inquiry notice as to any fraudulent activity by Mabon, thus barring her from bringing her Rule 10b-5 claim in 1993. Defendants rely heavily on Appel v. Kidder, Peabody & Co., 628 F.Supp. 153 (S.D.N.Y.1986), in which Judge Weinfeld held that plaintiffs’ churning claims were time barred because plaintiff admitted receiving confirmation slips and monthly reports and therefore had a duty of inquiry as to these claims. Id. at 158. We believe, however, that Appel is distinguishable from this case in that Appel involved a plaintiff who did not review the daily confirmations and month-end statements that defendants sent him. See id. at 157-58; see also Lebow v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 86 C 8196, 1987 WL 7808, at *3 (N.D.Ill. Mar. 12, 1987) (noting that in Appel, “the plaintiff did not check his confirmation slips for almost" }, { "docid": "18375384", "title": "", "text": "parties had the suit been permitted to continues as a class action,” there is a difference of opinion as to whether a statute of repose can be tolled. American Pipe, 414 U.S. at 554, 94 S.Ct. 756. Regarding the three-year statute of repose for federal securities law, the Supreme Court held in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), “Because the purpose of the 3-year limitation is clearly to serve as a cutoff ... tolling principles do not apply to that period.” Nevertheless, the majority of the lower courts addressing the issue interpret this Lampf rule to refer to equitable tolling, which they distinguish from legal tolling. See, e.g., Joseph v. Wiles, 223 F.3d 1155, 1166-67 (10th Cir.2000) ; In re Discovery Zone Sec. Litig., 181 F.R.D. 582, 600 n. 11 (N.D.Ill.1998); Ballard v. Tyco International, Ltd., No. MDL 02-MD-1335-PB, Civ. 04-CV-1336-PB, 2005 WL 1683598, at *7 (D.N.H. July 11, 2005); Official Committee of Asbestos Claimants of G-I Holding, Inc. v. Heyman, 277 B.R. 20, 31-32 (S.D.N.Y.2002); Salkind v. Wang, Civ. A. No. 93-10912-WGY, 1995 WL 170122, *2, *3 (D.Mass. Mar.30, 1995); Mott v. R.G. Dickinson & Co., No. 92-1450-PFK, 1993 WL 63445, *5 (D.Kan. Feb. 24,1993). But see Cacha v. Montaco, Inc., 147 N.C.App. 21, 554 S.E.2d 388, 392-93 (2001) (following prior opinion of court holding that American Pipe does not apply to North Carolina’s statute of repose, but not distinguishing between equitable and legal tolling). Legal tolling does not interfere with the purposes of statutes of limitation and repose (protecting defendants from, unfair surprise and preventing plaintiffs from sleeping on their rights) because the filing of the class action satisfies these objectives. Official Committee, 277 B.R. at 32. This Court find the logic of Joseph v. Wiles and progeny recognizing the legal tolling of statutes of limitation and repose persuasive by the filing of a federal class action and adopts that distinction. A common issue is what relationship between the claims in the class action and the claims in an individual law suit is necessary to" }, { "docid": "2419231", "title": "", "text": "Therefore, according to the plaintiffs, the February 17, 1999 claims made against Pace in the Second Amended Complaint are timely. Notably, the plaintiffs concede that Pace’s liability extends back to acts committed no more than three years prior to that date, on February 17,1996. The plaintiffs offer no relevant caselaw in support of their proposition that the statute of limitations is subject to the doctrine of equitable tolling based on fraudulent concealment, and the Court rejects this argument in light of the Supreme Court’s decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 2782, 115 L.Ed.2d 321 (1991). In Lampf, the Supreme Court held that although time limits in lawsuits are subject to equitable tolling, “it is evident that [this venerable principle] principle is fundamentally inconsistent with the l-and-3-year structure.” Id. The Court explained that “[t]he 1-year period, by its terms, begins after discovery of the facts constituting the violation, making tolling unnecessary.” Id. In addition, the 3-year limit is a period of repose that serves as a cutoff and, therefore, is inconsistent with tolling. Id. Accordingly, tolling principles also do not apply to the 3-year period of repose. Id. Thus, the Court finds the plaintiffs’ assertion that the statute of limitations should be tolled based on the fraudulent concealment of Pace’s involvement in the scheme is without merit. See Lampf 501 U.S. at 363, 111 S.Ct. at 2782; Dafofin, 2001 WL 940632 (explaining that although doctrine of equitable tolling applies in fraud cases, it does not apply in cases brought under the Securities Acts); Komanoff v. Mabon, Nugent & Co., 884 F.Supp. 848, 853 (S.D.N.Y.1995) (declining to apply doctrine of fraudulent concealment after the Supreme Court’s decision in Lampf); Falik v. Parker Duryee Rosoff & Haft, 869 F.Supp. 228, 232 (S.D.N.Y.1994); Siemens v. Atlantic Richfield Co., No. 93 Civ. 1126 (LAP), 1994 WL 86368 (S.D.N.Y. March 16, 1994); Cohen v. Prudential-Bache, Sec., 777 F.Supp. 276, 279 (S.D.N.Y.1991) (‘Whereas equitable tolling generally applies in fraud cases, the doctrine does not apply to claims for securities fraud under section 10(b).”); see also Tregenza" }, { "docid": "18016997", "title": "", "text": "In re Sterling Foster & Co., Inc. Sec. Litig., 222 F.Supp.2d 312, 321 (E.D.N.Y.2002); Schwenk v. Kavanaugh, 4 F.Supp.2d 116, 118 (N.D.N.Y.1998). . The Supreme Court in that decision was applying the 1- and 3-year structure that was changed by the Sarbanes-Oxley Act. However, the reasoning of the Supreme Court is also applicable to the 2- and 5-year structure which may govern some plaintiffs' claims; thus, the Court finds it controlling with respect to all Complaints. . Some courts in the Second Circuit have held that if an investor undertakes an inquiry upon being placed on inquiry notice of a probable fraud, but is frustrated in that inquiry by the defendants fraudulent concealment of the violation, then the doctrine of equitable tolling may apply even in a § 10(b) claim. See Dodds, 12 F.3d at 350; Falik v. Parker Duryee Rosoff & Haft, 869 F.Supp. 228, 233 (S.D.N.Y.1994) (Motley, J.) (\"[E]quitable tolling stays the statute of limitations under Rule 10b-5 only as long as the defrauded party satisfies his duty to exercise reasonable diligence to discover the fraud.”) Such reasoning is, of course, entirely consistent with the ruling of the Supreme Court in Lampf. As explained in LC Capital, if an investor undertakes an inquiry once put on inquiry notice, the statute of limitations will begin to run only from the date that the investor \"in the exercise of reasonable diligence should have discovered” the fraud. LC Capital, 318 F.3d at 154 (emphasis added) (quotation and citation omitted). Where the defendant is fraudulently concealing the violation from the investor's diligent inquiry, then the statute does not begin to run because a reasonable investor can not be expected to discover the fraud. However, this argument is not available to these plaintiffs because they do not allege that they began an inquiry until after April 8, 2002, more than two years after they were placed on inquiry notice. . Only the cases relating to the 8 remaining stocks captioned above are decided hereby. The litigations relating to securities other than those captioned above, including those originally denominated Phase I but not considered" }, { "docid": "2884336", "title": "", "text": "must rise to the level of the probable and not merely of the possible.”). Under the doctrine of equitable tolling, federal courts have traditionally held that “the active concealment of fraudulent conduct tolls the statute of limitations in favor of the defrauded party until such time as he actually knew of the fraudulent conduct of the opposing party.” Robertson v. Seid man & Seidman, 609 F.2d 583, 593 (2d Cir. 1979). However, since Lamp/, the Second Circuit has held that equitable tolling stays the statute of limitations under Rule 10b-5 only as long as the defrauded party satisfies his duty to exercise reasonable diligence to discover the fraud. See Dodds, 12 F.3d at 350; Siemens Solar Indus, v. Atlantic Richfield Co., No. 93 Civ. 1126 (LAP), 1994 WL 86368, at *5 (S.D.N.Y. Mar. 16,1994). Moreover, once a plaintiff has constructive notice of a fraud, neither reassurances from the defendants nor fraudulent concealment on their part will relieve the plaintiff of this duty of reasonable diligence. In re Integrated Resources, 815 F.Supp. at 640. See also Zola v. Gordon, 685 F.Supp. 354, 366, 368 (S.D.N.Y.1988). In the instant matter, Falik, the former Chief Financial Officer of Emerson, filed his original complaint on June 9, 1994. The question then is — what did Falik know and when did he know it? As of early June 1993, Plaintiff was aware of several key facts. First, despite the Emerson board’s June 11, 1991 approval of Falik’s exercise of his stock option and Falik’s repeated requests for his shares, Falik did not receive any stock certificates until May of 1992, and then what he received was a certificate for restricted, unregistered shares. Second, as of early October 1992, Falik knew of the conflicts between himself and Emerson, Parker Duryee, Haft, and Stein in the Karr litigation; thus, he should have been aware that Emerson and its directors may not have had his best interests in mind. Third, Falik had reason to know that despite Defendant Davis’s promise, Emerson was not rushing to issue Falik unrestricted shares after filing its 1992 10-K report in April 1993." }, { "docid": "6374936", "title": "", "text": "44-45. According to plaintiffs, the losses in their accounts due to defendants’ wrongful actions amounted to approximately $1,064,278.00 for Charles Komanoff and $7,922,100.00 for Hannah Komanoff. This constituted a total loss of $8,986,378.00 out of plaintiffs’ combined investment of $14,768,312.00. DISCUSSION A. Rule 10b-5 Claims Plaintiffs allege that defendants have violated § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, promulgated thereunder by the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5. Amended Complaint ¶ 1. Defendants respond that any claims under these provisions are time barred. Alternatively they argue that we should dismiss these claims pursuant to Fed. R.Civ.P. 9(b) for failure to plead fraud with particularity. 1. Statute of Limitations The parties agree that the applicable statute of limitations for Rule 10b-5 claims is the one-and-three-year rule set forth by the Supreme Court in Lampf Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 361, 111 S.Ct. 2773, 2781, 115 L.Ed.2d 321 (1991) (applying the period specified in §§ 9 and 18 of the 1934 Act). See also Walsche v. First Investors Corp. 981 F.2d 649, 653 (2d Cir.1992). Under this rule, a Rule 10b-5 claim must be brought within one year after discovery of the facts constituting the violation and within three years of such violation. Lampf, 501 U.S. at 359-60, 111 S.Ct. at 2780. a. Charles Komanoff To avoid the three-year bar, Mr. Komanoff urges that the running of that limitation period should be tolled due to fraudulent concealment on the part of defendants that prevented plaintiffs from discovering defendants’ wrongdoing. Mr. Komanoff offers no relevant caselaw in support of this proposition, and we reject it in light of the Lampf decision. In Lampf the Supreme Court held that the three year cutoff for Section 10(b) claims is absolute, reasoning that “the equitable tolling doctrine is fundamentally inconsistent with the l-and-3-year structure.” Lampf 501 U.S. at 363, 111 S.Ct. at 2782 (explaining that “[t]he 3-year limit is a peri- Although the Amended Complaint does not specify when Charles Romanoffs account with Mabon was closed, defendants have provided evidence that this account was" }, { "docid": "2884335", "title": "", "text": "at 364, 111 S.Ct. at 2782 (footnote omitted). Moreover, the Second Circuit recently announced that under Lampf “‘discovery’ ... includes constructive or inquiry notice, as well as actual notice.” Menowitz v. Brown, 991 F.2d 36, 41 (2d Cir.1993). See also Dodds v. Cigna Securities, Inc., 12 F.3d 346, 350 (2d Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 1401, 128 L.Ed.2d 74 (1994). Thus, in applying Lampf, a court must determine when the plaintiff “obtain[ed] actual knowledge of the facts giving rise to the action or notice of the facts, which in the exercise of reasonable diligence, would have led to actual knowledge.” Kahn v. Kohlberg, Kravis, Roberts & Co., 970 F.2d 1030, 1042 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 494, 121 L.Ed.2d 432 (1992). See also Jackson Nat’l Life Ins. v. Merrill Lynch & Co., 32 F.3d 697, 701 (2d Cir.1994); In re Integrated Resources Real Estate Ltd. Partnerships Sec. Litig., 815 F.Supp. 620, 638 (S.D.N.Y.1993) (“To satisfy [the inquiry notice] test, the knowledge of the alleged fraud imputed to a plaintiff must rise to the level of the probable and not merely of the possible.”). Under the doctrine of equitable tolling, federal courts have traditionally held that “the active concealment of fraudulent conduct tolls the statute of limitations in favor of the defrauded party until such time as he actually knew of the fraudulent conduct of the opposing party.” Robertson v. Seid man & Seidman, 609 F.2d 583, 593 (2d Cir. 1979). However, since Lamp/, the Second Circuit has held that equitable tolling stays the statute of limitations under Rule 10b-5 only as long as the defrauded party satisfies his duty to exercise reasonable diligence to discover the fraud. See Dodds, 12 F.3d at 350; Siemens Solar Indus, v. Atlantic Richfield Co., No. 93 Civ. 1126 (LAP), 1994 WL 86368, at *5 (S.D.N.Y. Mar. 16,1994). Moreover, once a plaintiff has constructive notice of a fraud, neither reassurances from the defendants nor fraudulent concealment on their part will relieve the plaintiff of this duty of reasonable diligence. In re Integrated Resources, 815 F.Supp. at 640. See also" }, { "docid": "16366184", "title": "", "text": "period. In re Levy, 185 B.R. 378 (Bankr.S.D.Fla.1995). See Lampf Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 2782, 115 L.Ed.2d 321 (1991) (“where the party injured by the fraud remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.”) (quoting Bailey v. Glover, 21 Wall. 342, 348, 22 L.Ed. 636 (1875)). The equitable tolling doctrine most often applied is that enunciated in Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946). When a defendant’s fraudulent deceptions leave a plaintiff ignorant of the facts or even existence of his claim, the limitations period is tolled until discovery of the fraud. Id. at 396-97, 66 S.Ct. at 584-85. Equity does not lend itself to fraud of any kind. Id. at 396, 66 S.Ct. at 584. While this doctrine is not applicable to the time limitation imposed by every federal statute, it does apply to.all federal statutes where the time limits are in the character of a true statute of limitations. In re M&L Bus. Mach. Co. Co., Inc., 75 F.3d 586 (10th Cir.1996); In re United Ins. Mgmt., Inc., 14 F.3d 1380 (9th Cir.1994). In such a case, the statute is simply an affirmative defense, and, consequently, subject to equitable considerations such as estoppel and waiver. Smith v. Mark Twain Nat’l Bank, 805 F.2d 278, 293-94 (8th Cir.1986) (applying equitable estoppel to section 549(d)). Equitable considerations are inapplicable, however, where time limits are jurisdictional in nature and are to be strictly construed. Id. Our Circuit’s precedent holds that § 546(a) is a statute of limitation that can be waived. In re Pugh, 158 F.3d 530, 537 (11th Cir.1998). We think the same principles apply to equitably toll the statute as well. See In re Klayman, 228 B.R. 805 (Bankr.M.D.Fla.1999); In" }, { "docid": "18016981", "title": "", "text": "with the statute of limitations structure applicable to § 10(b) claims. Equitable tolling is inconsistent with the discovery period because if a defendant actively conceals a fraud, then plaintiff will not discover the facts suggesting the violation and the statute will not begin to run, making tolling unnecessary. Dafofin Holdings S.A. v. Hotelworks.com, Inc., No. 00 Civ. 7861(LAP), 2001 WL 940632, at * 5 (S.D.N.Y. Aug.17, 2001) (Preska, J.). Equitable tolling is also fundamentally inconsistent with the repose period because that limit is “ ‘clearly to serve as a cutoff and it would have no significance as an outside limit if it could be tolled.” Friedman v. Wheat First Sec. Inc., 64 F.Supp.2d 338, 345 (S.D.N.Y.1999) (Ward, J.) (quoting Lampf, 501 U.S. at 363, 111 S.Ct. 2773). Thus, plaintiffs’ contention that the doctrine of equitable tolling would apply to render their belatedly filed claims timely is entirely without merit. III. PLAINTIFFS HAVE FAILED TO ALLEGE FACTS INDICATING SCIENTER Often lost in the enormous muddle of securities litigation is this most basic of facts: not every knowing misrepresentation creates a legal cause of action under the securities laws. The requisite state of mind, or scienter, in an action under Section 10(b) and Rule 10b-5, that the plaintiff must allege is a purpose to harm by intentionally deceiving, manipulating or defrauding. Kalnit v. Eichler, 264 F.3d 131, 137 (2d Cir.2001); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 1381, 47 L.Ed.2d 668 (1976) (same). Plaintiffs argue that the Complaints need not allege a purpose to harm investors. The rulings of the Supreme Court and the Second Circuit, however, show that the requisite state of mind for actionable securities fraud under Rule 10b-5 is the intent to deceive, manipulate or defraud, not merely the intent to utter an untruth. See 8 Louis Loss & Joel Seligman, Semrities Regulation 3664 (3d ed.1991) (noting that the majority opinion in Hochfelder adopted a standard of “not merely knowing falsity but ‘intent to deceive, manipulate or defraud’ ”). A “fraud” is a “knowing misrepresentation of the truth or concealment of a material fact" }, { "docid": "17836758", "title": "", "text": "1127, 71 L.Ed.2d 234 (1982); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Few courts have addressed whether or not the continuing violation doctrine applies to securities fraud cases under the one-year/three-year limitations provisions for claims under § 10(b) under Lampf and for claims § 12(a)(2) through § 13. As the only federal appellate court that has done so, the Fourth Circuit, based on the language in Lampf stating that equitable tolling does not apply to the period of repose for claims under § 10(b), has rejected the continuing violation doctrine’s application to securities fraud claims. Caviness v. Derand Resources Corp., 983 F.2d 1295, 1301-02 (4th Cir.1993). Rebuffing the plaintiffs’ argument that “the running of [the] limitations period is tolled by fraudulent concealment and that defendants should be equitably estopped from relying on plaintiffs’ failure to establish the limitation requirements,” the panel concluded that such equitable tolling would “ignore the plain meaning of the language [of § 13] that says ‘in no event’ may an action be filed more than three years after the sale and defeat the very purpose of the statute of repose.” Id. at 1301. “It would also render meaningless the discovery standard that is applied to the one-year limitation provision.” Id. The Fourth Circuit also relied on the Supreme Court’s determination in Lampf that the one-year period “by its terms, begins after discovery of the facts constituting the violation, making tolling unnecessary.” Id. See also de la Fuente v. DCI Telecommunications, Inc., 206 F.R.D. 369, 385-86 (S.D.N.Y.2002), citing SEC v. Caserta, 75 F.Supp.2d 79, 89 (E.D.N.Y.1999), and SEC v. Schiffer, 97-CV-5852 (RO), 1998 WL 226101, *3 (S.D.N.Y. May 5, 1998). This Court finds its rationale persuasive. The only case this Court has found recognizing the application of the continuing violation theory in a securities fraud action was cited by Lead Plaintiff. SEC v. Ogle, No. 99 C 609, 2000 WL 45260, *4-5 (N.D.Ill. Jan.11, 2000). Nevertheless, this Court finds its conclusion unconvincing because the court ignored the existence of the statute of repose, which the Lampf court" }, { "docid": "13280065", "title": "", "text": "not modify the statute of limitations when it passed the PSLRA in 1995. While the PSLRA is intended to prevent frivolous litigation, plaintiffs must satisfy both the heightened pleading requirements and the statute of limitations. If plaintiffs had proceeded to investigate the allegedly questionable acquisition accounting that was referred to in the May 3, 1999 SEC release, and that was the subject of the restated DCI financial statements filed with the SEC, he could have timely filed a complaint. D. Equitable Tolling Doctrine Plaintiffs argue that equity mandates that the running of the statute of limitations must be tolled until, objectively speaking, plaintiffs, with reasonable diligence, should have discovered critical facts of both the injury and its cause. Corcoran, 202 F.3d 530, 544-45 (2d Cir.1999). Under the doctrine of equitable tolling, “if the defendant actively prevented plaintiff from discovering the basis of the claim, then the statute of limitations will be tolled for the period of concealment.” Dodds, 12 F.3d at 352. The doctrine of equitable tolling does not apply to the statute of limitations in securities fraud cases. See Lampf v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (“the 1-year period, by its terms, begins after discovery of the facts constituting the violation, making [equitable] tolling unnecessary”; “[because] the purpose of the 3-year limitation is clearly to serve as a cutoff, we hold that [equitable] tolling principles do not apply to that period”); Rothman v. Gregor, 220 F.3d 81, 97 n. 1 (2d Cir.2000). Thus, plaintiffs’ argument is merely a restatement of the lack of inquiry notice claim. Dafofin Holdings S.A. v. Hotelworks.com, Inc., 2001 WL 940632 (S.D.N.Y. 2001) (citing Cohen v. Prudential-Bache Sec., 777 F.Supp. 276, 279 (S.D.N.Y.1991) (“[wjhereas equitable tolling generally applies in fraud cases, the doctrine does not apply to claims for securities fraud under section 10(b)”)). Thus, all of the plaintiffs’ claims except for the Corzon allegations are time-barred. III. Leave to amend Plaintiffs ask for leave to amend if the court determines that his complaint is deficient. In general, “leave to amend should be freely granted,” and “there must" }, { "docid": "2419232", "title": "", "text": "a cutoff and, therefore, is inconsistent with tolling. Id. Accordingly, tolling principles also do not apply to the 3-year period of repose. Id. Thus, the Court finds the plaintiffs’ assertion that the statute of limitations should be tolled based on the fraudulent concealment of Pace’s involvement in the scheme is without merit. See Lampf 501 U.S. at 363, 111 S.Ct. at 2782; Dafofin, 2001 WL 940632 (explaining that although doctrine of equitable tolling applies in fraud cases, it does not apply in cases brought under the Securities Acts); Komanoff v. Mabon, Nugent & Co., 884 F.Supp. 848, 853 (S.D.N.Y.1995) (declining to apply doctrine of fraudulent concealment after the Supreme Court’s decision in Lampf); Falik v. Parker Duryee Rosoff & Haft, 869 F.Supp. 228, 232 (S.D.N.Y.1994); Siemens v. Atlantic Richfield Co., No. 93 Civ. 1126 (LAP), 1994 WL 86368 (S.D.N.Y. March 16, 1994); Cohen v. Prudential-Bache, Sec., 777 F.Supp. 276, 279 (S.D.N.Y.1991) (‘Whereas equitable tolling generally applies in fraud cases, the doctrine does not apply to claims for securities fraud under section 10(b).”); see also Tregenza v. Great Am. Comms. Co., 823 F.Supp. 1409, 1415 (N.D.Ill.1993) (“A party cannot both have inquiry notice and merit equitable tolling.”); Manning v. Maloney, 181 F.Supp. 433, 436 (M.D.Pa.1992) (“Equitable tolling under the doctrine of fraudulent concealment does not apply to [Securities and Exchange Act] actions.”); In re Rospatch Sec. Litig., Nos. 90 Civ. 805, 90 Civ. 806, 90 Civ. 85, 1991 WL 335253 (W.D.Mich. Oct. 11, 1991) (“Lampf overruled any equitable tolling in prior law.”). The Second Circuit recognized this limitation on equitable tolling in Dodds v. Cigna, 12 F.3d 346 (2d Cir.1993), in which it held that where, as here, a plaintiff is on inquiry notice, the statutory period is “tolled” only so long as the plaintiffs have “exercised reasonable care and diligence in seeking to learn the facts which would disclose fraud.” Id. at 350; see Dafofin, 2001 WL 940632; Siemens, 1994 WL 86368. Thus, although the plaintiffs are not entitled to an equitable tolling of the statute of limitations, the Court must consider their allegations concerning Pace’s attempt to conceal his" } ]

[ { "docid": "1394429", "title": "", "text": "under section 103. The solicitor took the same view, which is summed up in his brief as follows: Clearly, then the compounds defined by subgeneric claim 2 are obvious as compounds in view of the French patent disclosure. The sole issue, then, is whether such compounds are obvious within the meaning of 35 USC 103, as that term in that section of the statute has been interpreted by this Court in In re Papesch, 50 CCPA 1084, 315 F. 2d 381, 137 USPQ 43; In re Petering, supra [49 CCPA 993, 301 F. 2d 676, 133 USPQ 275], and In re Lambooy, 49 CCPA 985, 300 F. 2d 950, 133 USPQ 270. The board position, however, goes beyond that of the examiner, and beyond what the solicitor chose to argue in this court, in that its opinion makes the following statement : If the specific examples exemplifying the generic disclosure [of the French patent] are looked, to, the possible combinations are quite small and include several compounds disclosed by appellants and within the scope of claims 1 and 2. Following In re Petering, 133 USPQ 275, these claims can even be said to be anticipated. [Emphasis ours.] Speaking of the Martin patent, the board opinion includes this statement : Thus there are disclosed the making of several compounds which [within?] the scope of claims 1 and 2 and over which claims 3 to 5 and 13 are considered obvious. [Emphasis ours.] To say that prior art compounds are “within the scope of” appealed claims is to say that those claims are “anticipated” and the board, therefore, appears to have taken the position that, “Following In re Petering,” claims 1 and 2 read on the prior art and are un-patentable for want of novelty under 35 USC 102, though the board made no reference to that section of the statute. In Petering, however, we did, expressly resting the rejection on section 102(b) on the ground the disclosure was such that it described the compound claimed. In “Following In re Petering,” the intent of the board to rely on section 102 seems" } ]

[ { "docid": "16447751", "title": "", "text": "197 USPQ 5 (Cust. & Pat.App.1978). Therefore, since claims 1 and 6 lack novelty, we are compelled to affirm the rejection of these claims. The remaining method of use claims, viz., claims 2-5 and 7-10, critically differ from claims 1 and 6 in that they recite the use of a novel compound. As recognized in In re Williams, 171 F.2d 319, 36 CCPA 756, 80 USPQ 150 (1948), the novelty of an optical isomer is not negated by the prior art disclosure of its racemate. Having noted that appellants conceded that it would have been prima facie obvious to use the compounds recited in these claims as analgesics, the board went on to state that “[t]he fact that the prior art does not specifically recognize other properties which when combined with analgesic activity render the obvious method more desirable for the same function does not diminish that teaching [i. e., use as an analgesic] with regard to the method . for effecting analgesic activity.” We cannot accept the board’s analysis. In effect, the board cast its conclusion of obviousness in concrete. Its mode of analysis leaves no room for the submission of objective evidence directed to nonobviousness — in this case, appellants’ rebuttal evidence that nonaddictive analgesia was unexpected and superior to the known prior art analgesia. See, e. g., In re Orfeo, 440 F.2d 439, 58 CCPA 1123, 169 USPQ 487 (1971). We now proceed to consider the appealed claims in light of all the evidence. In re Rinehart, supra. The May-Eddy affidavits establish, by test data, that the compounds named in the claims have an E.D.50 comparable to that of morphine sulfate, while also exhibiting morphine antagonistic activity with no PDC. We believe the record supports appellants’ contention that the compounds recited in the claims exhibit the clinical property of nonaddictiveness. We specifically note paragraphs 6 and 14 of the Jacobson affidavit, reproduced supra, and the Gates et al. article, discussed supra. Collectively, they support the conclusion that the laboratory test properties of morphine antagonistic activity plus no PDC is evidence of the clinical property of nonaddictiveness, and" }, { "docid": "21446339", "title": "", "text": "Takeda’s expert, Dr. Danish-efsky, that the biological activities of various substituents were “unpredictable” based on the disclosure of Sodha II. Id. at 384-85. The court also found nothing in the '200 and '779 patents to suggest to one of ordinary skill in the art that homolo-gation would bring about a reasonable expectation of success. As for ring-walking, the court found that there was no reasonable expectation in the art that changing the positions of a substi-tuent on a pyridyl ring would result in beneficial changes. Dr. Mosberg opined that the process of ring-walking was “known” to Takeda, but the court found that testimony inapt as it failed to support a reasonable expectation to one of ordinary skill in the art that performing that chemical change would cause a compound to be more efficacious or less toxic. Id. at 382. Moreover, Dr. Mosberg relied on the efficacy data of phenyl compounds in Sodha II, but the court found those data insufficient to show that the same effects would occur in pyridyl compounds. Alphapharm relies on In re Wilder, 563 F.2d 457 (CCPA 1977), for the proposition that differences in a chemical compound’s properties, resulting from a small change made to the molecule, are reasonably expected to vary by degree and thus are insufficient to rebut a prima facie case of obviousness. In Wilder, our predecessor court affirmed the Board’s holding that a claimed compound, which was discovered to be useful as a rubber antidegradant and was also shown to be nontoxic to human skin, would have been obvious in light of its homolog and isomer that were disclosed in the prior art. The evidence showed that the homolog was similarly nontoxic to the human skin, whereas the isomer was toxic. The court held that “one who claims a compound, per se, which is structurally similar to a prior art compound must rebut the presumed expectation that the structurally similar compounds have similar properties.” Id. at 460. While recognizing that the difference between the isomer’s toxicity and the nontoxicity of the homolog and claimed compound “indicate[d] some degree of- unpredictability,” the court" }, { "docid": "9514061", "title": "", "text": "compound unobvious, since the claimed compound could be used as a gasoline additive, and that the appellant had failed to show the claimed compound to be a better rubber antidegradant than the isomer or homologue of the prior art. The board found that “the Examiner has made out a strong case of prima facie obviousness,” and “that appellant has failed to adequately rebut * * * [that] prima fa-cie case.” The board pointed out that, while appellant’s affidavit evidence demonstrated a reduced skin irritation using the claimed compound as compared to N-(l-me-thylhexyl)-N'-phenyl-p-phenylenediamine (the isomer) disclosed by Biswell, the evidence also illustrated that N-(l,3-dimethyl-butyl)-N '-phenyl-g-phenylenediamine (the homologue) is a lesser irritant than the claimed compound. Based on all the evidence, the board found that “appellant has failed to prove that the compound here claimed possesses unobvious properties relative to the compounds taught by the prior art of record.” The board also found that the decision in In re Wilder, supra note 1, (Wilder I) was not dispositive of the question of patenta-bility of the present claim to the compound per se. In Wilder I, this court reversed an obviousness rejection of a claim to a rubber composition containing the presently claimed compound. The board noted that the examiner used different prior art in this case, prior art which is evidence of the existence of structurally similar compounds and their utility as gasoline stabilizers, and noted, further, that appellant’s evidence of unobvious results does not relate to that utility. The board also stated that combining the prior art found in this and the 'earlier case, taken together, “tends to disprove any unobvious results for the claimed compound relative to the most structurally similar compounds of the prior art, when they are used in rubber compositions.” The Arguments Appellant contends that nothing in Bis-well remotely suggests using any of the structurally similar prior art compounds as rubber antidegradants, and that they would exhibit the absence of a skin-sensitizing property when used for that purpose. He also asserts that the minimal skin-sensitizing property of the claimed compound as compared to the prior art isomeric" }, { "docid": "16447761", "title": "", "text": "as uncontroverted evidence that the raison d’ étre for research by those skilled in this art was, and still is, not simply to produce another analgesic compound, but to produce one which would exert this therapeutic value while at the same time being nonaddictive. This, in our view, diminishes the significance that should be attached to the expected beneficial result of potent analgesia, i. e., it diminishes its evidentiary value that one skilled in the art would have been motivated to make appellants’ compounds and to use them to effect analgesia, and enhances the significance that should be attached to appellants’ unexpected result of nonaddictive, potent analgesia, i. e., it enhances its evidentiary value as an objective indicium of nonobviousness. Balancing the prima facie case of obviousness made out by the PTO against appellants’ objective evidence of nonobviousness, we hold that the subject matter of appealed claims 2-5 and 7-10 would not have been obvious to one of ordinary skill in the art. Composition Claims Preliminarily, we note that claims 11-13, like method claims 2-5 and 7-10, recite a novel compound. In re Williams, supra. The board’s treatment of the composition claims paralleled its disposition of claims 2-5 and 7-10. The board stated, in effect, that since the property of analgesic activity would have been expected, the fact that the prior art did not recognize another advantageous property, viz., nonaddictiveness, does not diminish the teaching of analgesic activity. We disagree. In In re Albrecht, 514 F.2d 1389, 1395-96, 185 USPQ 585, 590 (Cust. & Pat.App.1975), the court stated: We are of the opinion that a novel chemical compound can be nonobvious to one having ordinary skill in the art notwithstanding that it may possess a known property in common with a known structurally similar compound. [Emphasis in original.] Thus, merely because those skilled in the art would have expected the compound of claim 11 to have analgesic activity, does not mean, as the board apparently suggests, that an irrebuttable presumption of obviousness has been established. Those properties which would have been expected must be balanced against the unexpected properties. In" }, { "docid": "9514065", "title": "", "text": "compound has been shown to have an unexpected property not inhering in the prior art compound. The undisputed evidence in this case shows that the property relied on, at best, inheres in both the claimed compound and the prior art adjacent homologue * * *. As to appellant’s reliance on the relative structural similarity to the claimed compound of the isomer versus the homologue, the solicitor responds by arguing that the showing of skin-sensitizing superiority of the claimed compound over the isomer does not in any way render the homologue unavailable as a prior art compound. Finally, the solicitor attempts to distinguish Wilder I by relying on direct evidence allegedly not present in Wilder I, that the claimed compound is inferior to the prior art homologue because of the skin-sensitizing property. OPINION Considering the very close structural similarity of the claimed compound and the reference compounds and the fact that the reference compounds were known in the prior art to be useful as gasoline antidegradants, we conclude that the lack of skin toxicity exhibited by the claimed compound when used as a rubber antidegradant does not rebut the prima facie case of obviousness. Although appellant’s evidence shows a substantial difference in skin toxicity between the claimed compound and the isomer, the evidence does not point out a single actual difference in properties between the claimed compound and the homologue. Wilder’s discovery of the absence of skin toxicity in the claimed compound does not end the inquiry, because one who claims a compound, per se, which is structurally similar to a prior art compound must rebut the presumed expectation that the structurally similar compounds have similar properties. In re Hoch, supra. Appellant has shown no actual difference in properties between the two compounds or any other evidence sufficient to rebut that expectation. Contrary to Wilder’s assertion, the PTO did not improperly use his discovery against him. It is not his discovery of the similarity between the claimed compound and the homologue in nontoxicity which renders the claimed compound obvious, but the evidence as a whole which here fails to rebut the" }, { "docid": "16447766", "title": "", "text": "may rebut the aforementioned presumption by producing sufficient evidence which demonstrates a substantial degree of unpredictability in the pertinent art area. In contradistinction to the appellant in Wilder II, appellants here have established a substantial record of unpredictability visa-vis a highly significant combination of properties. The May-Eddy affidavits tested the a-( +), 0 p -(+) isomers, as well as the a-(±) and p-(±) racemates, of the claim 11 compound and the prior art compound, viz., a-(-)-2'-hydroxy-2,5,9-trime-thyl-6,7-benzomorphan. Similar tests were conducted on the compounds in claims 3-5 and 8-10, which are homologues of the. claim 11 compound, as well as on their isomers and racemates. Of the 21 compounds tested, only the levo and alpha-levo compounds (five compounds) exhibited either morphine antagonistic activity or the combination of properties of no PDC coupled with morphine antagonistic activity. Moreover, appellants submitted the Jacobson affidavit which states, inter alia, that “analgesia and addiction liability cannot reliably be predicted on the basis of chemical structure.” Thus, unlike the appellant in Wilder II, appellants here have satisfactorily rebutted the presumed expectation that structurally similar compounds have similar properties. Balancing the prima facie case of obviousness made out by the PTO against appellants’ objective evidence of nonobviousness, we hold that the subject matter of claims 11-13 would not have been obvious to one of ordinary skill in the art. Compare In re Albrecht, supra; In re Murch, supra; In re Ruschig, supra; with In re Hoch, supra; In re Mod, 408 F.2d 1055, 56 CCPA 1041, 161 USPQ 281 (1969); In re de Mont-mollin, 344 F.2d 976, 52 CCPA 1287, 145 USPQ 416 (1965). Accordingly, for the reasons set forth herein, the decision of the board is affirmed as to claims 1 and 6 and reversed as to claims 2-5 and 7-13. MODIFIED. . This application is a continuation-in-part of application serial No. 801,209, filed February 20, 1969, which is in turn a continuation-in-part of application serial No. 643,382, filed June 5, 1967; both applications are now abandoned. . U.S. Patent No. 3,138,603, issued June 23, 1964, for “New Benzomorphans (Methanoben-zazocines) and Preparation Thereof.” . Chignell, Ager," }, { "docid": "16447762", "title": "", "text": "and 7-10, recite a novel compound. In re Williams, supra. The board’s treatment of the composition claims paralleled its disposition of claims 2-5 and 7-10. The board stated, in effect, that since the property of analgesic activity would have been expected, the fact that the prior art did not recognize another advantageous property, viz., nonaddictiveness, does not diminish the teaching of analgesic activity. We disagree. In In re Albrecht, 514 F.2d 1389, 1395-96, 185 USPQ 585, 590 (Cust. & Pat.App.1975), the court stated: We are of the opinion that a novel chemical compound can be nonobvious to one having ordinary skill in the art notwithstanding that it may possess a known property in common with a known structurally similar compound. [Emphasis in original.] Thus, merely because those skilled in the art would have expected the compound of claim 11 to have analgesic activity, does not mean, as the board apparently suggests, that an irrebuttable presumption of obviousness has been established. Those properties which would have been expected must be balanced against the unexpected properties. In re Nolan, supra; cf. In re Murch, supra; In re Ruschig, 343 F.2d 965, 52 CCPA 1238, 145 USPQ 274 (1965) (vague “basket” disclosure uses suggested by prior art, but no suggestion that claimed compound would be anti-diabetic agent). See generally In re Papesch, 315 F.2d 381, 50 CCPA 1084, 137 USPQ 43 (1963). The solicitor cites In re Wilder, 563 F.2d 457, 195 USPQ 426 (Cust. & Pat.App.1977) [hereinafter cited as Wilder II], as supportive of the board’s decision. In Wilder II, appellant claimed a single compound which was disclosed as useful as an antidegradant in rubber and which unexpectedly had minimal toxicity to human skin. The prior art taught that the isomer and homologue of the claimed compound were useful as gasoline stabilizers. While appellant’s affidavit evidence established reduced skin irritation using the claimed compound compared to the isomer, the evidence also illustrated that the homologue was a lesser irritant than the claimed compound. The prior art, however, was unaware of the homologue’s low toxicity. Particularly relevant to the case at bar is" }, { "docid": "9514066", "title": "", "text": "the claimed compound when used as a rubber antidegradant does not rebut the prima facie case of obviousness. Although appellant’s evidence shows a substantial difference in skin toxicity between the claimed compound and the isomer, the evidence does not point out a single actual difference in properties between the claimed compound and the homologue. Wilder’s discovery of the absence of skin toxicity in the claimed compound does not end the inquiry, because one who claims a compound, per se, which is structurally similar to a prior art compound must rebut the presumed expectation that the structurally similar compounds have similar properties. In re Hoch, supra. Appellant has shown no actual difference in properties between the two compounds or any other evidence sufficient to rebut that expectation. Contrary to Wilder’s assertion, the PTO did not improperly use his discovery against him. It is not his discovery of the similarity between the claimed compound and the homologue in nontoxicity which renders the claimed compound obvious, but the evidence as a whole which here fails to rebut the expectation of similar properties. The lack of toxicity in the homologue is simply a fact which cannot be refuted by Wilder or ignored by the PTO. The showing that the isomer is toxic while the homologue and the claimed compound áre not, does indicate some degree of unpredictability, as appellant argues. However, we are convinced, on this record, that the claimed compound would have been obvious in view of the homologue. Because the expectation of similar properties stands unrebutted, it necessarily follows that an expectation of similar uses also stands unrebutted. This expectation of similar uses necessarily implies an expectation that the claimed compound would have been a substantially equivalent substitute for the prior art gasoline antidegradant and this expectation stands unrebutted. Since this expectation of equivalency for the prior art use stands unrebutted, we must conclude that it would have been obvious to use the claimed compound as a gasoline antidegradant. Since appellant’s composition of matter claim would be infringed by this presumably obvious use of the claimed composition, we will not permit such" }, { "docid": "407151", "title": "", "text": "at 1057, 161 USPQ at 283. In a decision analogous to the majority’s holding today, the CCPA held that because Mod’s new compounds would have been obvious for the prior art use as insecticides, they were unpatentable despite Mod’s discovery of a “significant” new property. Id. Mod has often been distinguished. See, e.g., In re Albrecht, 514 F.2d 1389, 185 USPQ 585 (CCPA 1975), wherein the court directly contradicted Mod, as follows: We are of the opinion that a novel chemical compound can be nonobvious to one having ordinary skill in the art notwithstanding that it may possess a known property in common with a known structurally similar compound. Id. at 1395-96, 185 USPQ at 590 (emphasis in original). With rare exceptions Mod has not been followed; until today. Continuing the chronological review: In In re Jones, 412 F.2d 241, 56 CCPA 1293, 162 USPQ 224 (CCPA 1969) the court upheld the rejection of composition claims to a blend of polypropylene and an asbestos filler as prima facie obvious, for the reason that “the prior art suggests the combination generally for the primary purpose (i.e., improved structural rigidity) for which it was made.” Id. at 244, 162 USPQ at 226. Comparative data were properly required, for both structure and properties were suggested in the prior art. The procedural and substantive rigor of the prima facie case in patent examination is again illustrated in In re Godron, 428 F.2d 854, 57 CCPA 1289, 166 USPQ 327 (CCPA 1970), wherein the court held that since a prima facie case of obviousness was not made as to a new glass composition having new and unobvious properties, it was unnecessary for the applicant to prove whether the prior art composition had the same property (the ability to wet graphite) as the applicant’s composition: We agree that it is improper to require comparative evidence where a reference is devoid of any suggestion of the claimed invention. Id. at 855, 166 USPQ at 329. This procedure was similarly applied to chemical process claims. For example, in In re Freed, 425 F.2d 785, 57 CCPA 1089, 165" }, { "docid": "15351843", "title": "", "text": "of ordinary skill in the art an isomer, homolog or analog of related structure, when that mythical, but intensely practical, person knows of no “practical” reason to make the reference compounds, much less any structurally related compounds? 444 F.2d at 586, 58 CCPA at 1417. We are of the opinion that a novel chemical compound can be nonobvious to one having ordinary skill in the art notwithstanding that it may possess a known property in common with a known structurally similar compound. Where, as in this case, it is disclosed that the prior art compounds “cannot be regarded as useful” for the sole use disclosed, as an anesthetic, we fully agree with the opinion of Examiner-in-Chief Serota that a person having ordinary skill in the art would lack the “necessary impetus” to make the claimed compounds. Compare In re Mod, supra, where the common property which the prior art compound was known to possess was a specific significant property. See In re Lintner, 458 F.2d 1013, 1016, 59 CCPA 1004, 1007 (1972). Appellants’ affidavit evidence, we note, shows that the additional advantageous activity disclosed for the claimed compounds, namely antiviral activity, is not in fact possessed by the prior art analog. That a claimed novel compound possesses a certain advantageous activity which is not in fact possessed by a prior art compound is itself evidence of the nonobviousness of the subject matter as a whole. See In re Stemniski, supra, and In re Papesch, supra. We observe, furthermore, that the antiviral activity discovered for the claimed compounds is totally dissimilar to any activity previously disclosed for the prior art analogs. A newly discovered activity of a claimed novel compound which bears no material relationship to the activity disclosed for the prior art analogs is further evidence, not to be ignored, of the nonobviousness of the claimed invention. In view of the foregoing, the board decision affirming the rejection of claims 1 — 8 is reversed. Reversed. . In re Albrecht, Cust. & Pat.App., 514 F.2d 1385, a related appeal decided concurrently herewith, involves, inter alia, the obviousness under § 103" }, { "docid": "9514064", "title": "", "text": "a different result from [that reached on claim 7 in Wilder I].” Finally, appellant asserts in his reply that the PTO has improperly relied on the absence of toxicity in the prior art homologue, when that property was in fact discovered by appellant, and was, therefore, not part of the prior art. The solicitor agrees with the board that Biswell presents a strong case of prima facie obviousness against appellant’s claim, which was not rebutted by appellant’s affidavit evidence. Relying on In re Hoch, 428 F.2d 1341, 57 CCPA 1292, 166 USPQ 406 (1970), and the proposition, often stated by this court, that a compound and its properties are inseparable, the solicitor concludes: [T]here is no logical basis for distinguishing patentably between a prior art compound and a claimed novel compound pri-ma facie obvious therefrom, even where a previously unknown or unobvious use has been found, where that use nevertheless inheres in both compounds and it is the compound per se that is claimed. Manifestly, a different case is presented where the otherwise obvious novel compound has been shown to have an unexpected property not inhering in the prior art compound. The undisputed evidence in this case shows that the property relied on, at best, inheres in both the claimed compound and the prior art adjacent homologue * * *. As to appellant’s reliance on the relative structural similarity to the claimed compound of the isomer versus the homologue, the solicitor responds by arguing that the showing of skin-sensitizing superiority of the claimed compound over the isomer does not in any way render the homologue unavailable as a prior art compound. Finally, the solicitor attempts to distinguish Wilder I by relying on direct evidence allegedly not present in Wilder I, that the claimed compound is inferior to the prior art homologue because of the skin-sensitizing property. OPINION Considering the very close structural similarity of the claimed compound and the reference compounds and the fact that the reference compounds were known in the prior art to be useful as gasoline antidegradants, we conclude that the lack of skin toxicity exhibited by" }, { "docid": "16447765", "title": "", "text": "thin veneer of similarity between Wilder II and the case at bar ends there. The appellant in Wilder II merely showed that while the isomer was toxic, the homologue and claimed compound were not. Although the court noted [supra at 461, 195 USPQ at 430] that this indicates “some degree of unpredictability,” it concluded that, on the record therein, the claimed compound would have been obvious. As alluded to by the court, the basis of the prima facie case of obviousness, at least to a major extent, is based on the presumed expectation that compounds which are similar in structure will have similar properties. The Wilder II court recognized that a showing of .actual difference in properties between the claimed compound and the structurally similar prior art compound over which it was rejected is not the only manner of rebutting this presumption. See In re Hoch, supra. But see In re Wilder, 429 F.2d 447, 57 CCPA 1314, 166 USPQ 545 (1970) (connected case to Wilder II). Implicit in Wilder II is that an applicant may rebut the aforementioned presumption by producing sufficient evidence which demonstrates a substantial degree of unpredictability in the pertinent art area. In contradistinction to the appellant in Wilder II, appellants here have established a substantial record of unpredictability visa-vis a highly significant combination of properties. The May-Eddy affidavits tested the a-( +), 0 p -(+) isomers, as well as the a-(±) and p-(±) racemates, of the claim 11 compound and the prior art compound, viz., a-(-)-2'-hydroxy-2,5,9-trime-thyl-6,7-benzomorphan. Similar tests were conducted on the compounds in claims 3-5 and 8-10, which are homologues of the. claim 11 compound, as well as on their isomers and racemates. Of the 21 compounds tested, only the levo and alpha-levo compounds (five compounds) exhibited either morphine antagonistic activity or the combination of properties of no PDC coupled with morphine antagonistic activity. Moreover, appellants submitted the Jacobson affidavit which states, inter alia, that “analgesia and addiction liability cannot reliably be predicted on the basis of chemical structure.” Thus, unlike the appellant in Wilder II, appellants here have satisfactorily rebutted the presumed expectation" }, { "docid": "16447756", "title": "", "text": "expect it to be nonaddictive. Considering the importance of nonaddictiveness in the field of analgesics (this statement will be developed hereinbelow), we find it difficult to believe that if, Chignell et al. thought they had uncovered a nonaddictive analgesic, they would not have expressly so stated. Therefore, since Chignell et al.’s racemate does not in fact exhibit the property which, according to this record, those skilled in the art look for as evidence of nonaddictiveness, viz., morphine antagonism, we fail to see how it would have suggested the nonaddic-tiveness of appellants’ compounds. The Jacobson affidavit, particularly paragraphs 13 and 14, supra, is evidence that, according to the opinion of an expert in the field, see In re Sebek, 465 F.2d 904, 59 CCPA 1220, 175 USPQ 93 (1972), since analgesia and addiction liability cannot reliably be predicted on the basis of chemical structure, and since nonaddictive analgesia had not been previously established for any of the N-methyl benzomorphans, the combination of properties exhibited by appellants’ compounds was unpredictable. Considering the entire record, including the fact that not a single reference relied upon by the PTO suggests that any N-methyl benzomorphan exhibits the combined properties of analgesic potency comparable to morphine coupled with nonaddictiveness, we are led to the inescapable conclusion that it was totally unexpected that appellants’ levo and alpha-levo N-methyl benzomorphans would have exhibited such a combination of properties and, concomitantly, could be used to effect nonaddictive analgesia. Since the record reflects both an expected beneficial result, viz., potent analgesia, and an unexpected beneficial result, viz., nonaddictive, potent analgesia, it is necessary to determine the weight to be accorded each prior to making the ultimate determination on the issue of obviousness. In re Nolan, 553 F.2d 1261, 1267, 193 USPQ 641, 645 (Cust. & Pat.App.1977); cf. In re Murch, 464 F.2d 1051, 59 CCPA 1277, 175 USPQ 89 (1972) (claimed thermoplastic blend had expected, improved blend toughness, but unexpected, improved weld line toughness); In re Orfeo, supra (expected that azeotrope could be used in claimed refrigeration process, but unexpected savings in power requirement). The Jacobson affidavit indicates that “medicinal" }, { "docid": "16447763", "title": "", "text": "re Nolan, supra; cf. In re Murch, supra; In re Ruschig, 343 F.2d 965, 52 CCPA 1238, 145 USPQ 274 (1965) (vague “basket” disclosure uses suggested by prior art, but no suggestion that claimed compound would be anti-diabetic agent). See generally In re Papesch, 315 F.2d 381, 50 CCPA 1084, 137 USPQ 43 (1963). The solicitor cites In re Wilder, 563 F.2d 457, 195 USPQ 426 (Cust. & Pat.App.1977) [hereinafter cited as Wilder II], as supportive of the board’s decision. In Wilder II, appellant claimed a single compound which was disclosed as useful as an antidegradant in rubber and which unexpectedly had minimal toxicity to human skin. The prior art taught that the isomer and homologue of the claimed compound were useful as gasoline stabilizers. While appellant’s affidavit evidence established reduced skin irritation using the claimed compound compared to the isomer, the evidence also illustrated that the homologue was a lesser irritant than the claimed compound. The prior art, however, was unaware of the homologue’s low toxicity. Particularly relevant to the case at bar is the following discussion in Wilder II, supra at 460, 195 USPQ at 429: Wilder’s discovery of the absence of skin toxicity in the claimed compound does not end the inquiry, because one who claims a compound, per se, which is structurally similar to a prior art compound must rebut the presumed expectation that the structurally similar compounds have similar properties. In re Hoch, supra [428 F.2d 1341, 57 CCPA 1292, 166 USPQ 406 (1970)]. Appellant has shown no actual difference [emphasis in original] in properties between the two compounds [claimed compound and prior art homologue] or any other evidence sufficient to rebut that expectation. [Emphasis added.] Appellants, as in Wilder II, have shown an actual unexpected difference in properties between the claimed compound and its isomers (only one isomer was involved in Wilder II). Also as in Wilder II, appellants’ evidence establishes that a single pri- or art homologue (disclosed in May) of the claimed compound, to wit, a -(-)-2'-hydroxy-2,5,9-trimethyl-6,7-benzomorphan, inherently possessed, unbeknownst to the prior art, the combination of properties of appellants’ compound. The" }, { "docid": "407150", "title": "", "text": "1967). Indeed, few of today’s new chemicals have such imaginative structure that structurally similar compounds are not to be found in the prior art. Nonetheless, the reasoning rejected in McLamore appeared two years later in the CCPA decision In re Mod. In re Mod, 408 F.2d 1055, 56 CCPA 1041, 161 USPQ 281 (CCPA 1969) was described by the Commissioner as “on all fours” with Dillon’s facts. Mod’s new compounds were adjacent homologs and isomers of known compounds that were described in the prior art as insecticides. Mod’s compounds had “antimicrobial activity against a variety of micro-organisms such as bacteria, yeast, and molds”. Id. at 1055, 161 USPQ at 282. The court held Mod’s compounds unpatent able for obviousness, referring to the close similarities of structure and remarking that Mod “did not deny” that his new compounds had insecticidal activity. The court in Mod did not discuss a “'prima facie case”, but stated that it was not sufficient for patentability that the antimicrobial activity of Mod’s new compounds was unknown to the prior art. Id. at 1057, 161 USPQ at 283. In a decision analogous to the majority’s holding today, the CCPA held that because Mod’s new compounds would have been obvious for the prior art use as insecticides, they were unpatentable despite Mod’s discovery of a “significant” new property. Id. Mod has often been distinguished. See, e.g., In re Albrecht, 514 F.2d 1389, 185 USPQ 585 (CCPA 1975), wherein the court directly contradicted Mod, as follows: We are of the opinion that a novel chemical compound can be nonobvious to one having ordinary skill in the art notwithstanding that it may possess a known property in common with a known structurally similar compound. Id. at 1395-96, 185 USPQ at 590 (emphasis in original). With rare exceptions Mod has not been followed; until today. Continuing the chronological review: In In re Jones, 412 F.2d 241, 56 CCPA 1293, 162 USPQ 224 (CCPA 1969) the court upheld the rejection of composition claims to a blend of polypropylene and an asbestos filler as prima facie obvious, for the reason that “the prior" }, { "docid": "407166", "title": "", "text": "art analogs is further evidence, not to be ignored, of the nonobviousness of the claimed invention. Id. at 1396, 185 USPQ at 590. The court reversed the rejection. In In re Albrecht, 514 F.2d 1385, 185 USPQ 590 (CCPA 1975), decided the same day, the court held, as to other related compounds, that a prima facie case was made based on structural similarity to the compounds of the same prior art reference as in Albrecht I. The court disposed of the Commissioner’s position that the applicant should have provided comparative data with the anesthetic property of the prior art compounds, as follows: There seems to be little doubt that the Patent and Trademark Office would not have entertained such a comparison if initiated by appellants because they have no support in their specification for use of the claimed compounds as anesthetics. See In re Davies, 475 F.2d 667, 177 USPQ 381 (CCPA 1973). Id. at 1389, 185 USPQ at 593. The court correctly observed that comparative data, when required to rebut a prima facie case, should relate to the new property and use discovered by the applicant, not an unrelated known use of the prior art products. In In re Lamberti, 545 F.2d 747, 192 USPQ 278 (CCPA 1976) certain new compounds having germicidal activity were rejected as prima facie obvious over structurally similar compounds described as biological toxicants, a use that the court found may include germicidal activity, although not necessarily. Id. at 750, 192 USPQ at 280. Rebuttal evidence was adduced and found insufficient. The court concluded: In view of the foregoing, and considering the claimed invention as a whole vis-a-vis the evidence produced by the PTO, which shows both a close structural similarity between the prior art compounds and the claimed compounds and a close similarity between the disclosed uses, we hold that appellants’ invention would have been obvious to one of ordinary skill in the pertinent art. Id. at 751, 192 USPQ at 281 (emphasis added). The majority has cited In re Shetty, 566 F.2d 81, 195 USPQ 753 (CCPA 1977). Shet ty’s new compounds were" }, { "docid": "21446340", "title": "", "text": "re Wilder, 563 F.2d 457 (CCPA 1977), for the proposition that differences in a chemical compound’s properties, resulting from a small change made to the molecule, are reasonably expected to vary by degree and thus are insufficient to rebut a prima facie case of obviousness. In Wilder, our predecessor court affirmed the Board’s holding that a claimed compound, which was discovered to be useful as a rubber antidegradant and was also shown to be nontoxic to human skin, would have been obvious in light of its homolog and isomer that were disclosed in the prior art. The evidence showed that the homolog was similarly nontoxic to the human skin, whereas the isomer was toxic. The court held that “one who claims a compound, per se, which is structurally similar to a prior art compound must rebut the presumed expectation that the structurally similar compounds have similar properties.” Id. at 460. While recognizing that the difference between the isomer’s toxicity and the nontoxicity of the homolog and claimed compound “indicate[d] some degree of- unpredictability,” the court found that the appellant failed to “point out a single actual difference in properties between the claimed compound and the homologue,” and thus failed to rebut the presumption. Wilder, 563 F.2d at 460. We would note that since our Wilder decision, we have cautioned “that generalization should be avoided insofar as specific chemical structures are alleged to be prima facie obvious one from the other,” Grabiak, 769 F.2d at 731. In addition to this caution, the facts of the present case differ significantly from the facts of Wilder. Here, the court found that pioglita-zone exhibited unexpectedly superior properties over the prior art compound b. Takeda, 417 F.Supp.2d at 385. The court considered a report entitled “Preliminary Studies on Toxicological Effects of Ciglita-zone-Related Compounds in the Rats” that was presented in February 1984 by Dr. Takeshi Fujita, then-Chief Scientist of Takeda’s Biology Research Lab and co-inventor of the '777 patent. That report contained results of preliminary toxicity studies that involved selected compounds, including pioglitazone and compound b. Compound b was shown to be “toxic to the" }, { "docid": "407164", "title": "", "text": "it was already of record, the principle underlying orderly patent examination is that the burden in the first instance is on the examiner to establish that the claimed invention is prima facie unpat-entable based on the prior art. The no-utility exception that is recognized in the majority opinion is seen in the following case. In In re Albrecht, 514 F.2d 1389, 185 USPQ 585 (CCPA 1975) (Albrecht I) the prior art compounds were described as anesthetics that had the disadvantage of being skin irritants and therefore were not of practical use. Albrecht’s new compounds were antiviral agents. The claims were rejected as prima facie obvious based on similarity of structure; in the examiner’s words: Where such closely structurally related compounds are concerned, actual unexpected differences in properties are required to overcome a prima facie case of obviousness. Even though the present compounds may exhibit an unexpected property as anti-virals, they are obvious as anesthetics. Id. at 1392, 185 USPQ at 587 (emphasis in original). The Commissioner argued that Albrecht must prove that his new compounds were not anesthetics. The court disagreed, holding that the properties shown in the prior art did not provide the “necessary impetus” to make Albrecht’s compounds, id. at 1396, 185 USPQ at 590. The court also reaffirmed that properties must always be considered: This court has several times recently expressed its position on the role of the properties of chemical compounds in assessing their obviousness under § 103. See In re Taborsky, 502 F.2d 775, 183 USPQ 50 (CCPA 1974); In re Blondel, 499 F.2d 1311, 182 USPQ 294 (CCPA 1974); see further In re Murch, 464 F.2d 1051 [59 CCPA 1277], 175 USPQ 89 (CCPA 1972); In re Lintner, 458 F.2d 1013 [59 CCPA 1004], 173 USPQ 560 (CCPA 1972). Id. at 1394, 185 USPQ at 588-89. The court observed that Albrecht’s newly discovered antiviral property is “totally dissimilar” to the properties disclosed for the prior art compounds, and is “not to be ignored”: A newly discovered activity of a claimed novel compound which bears no material relationship to the activity disclosed for the prior" }, { "docid": "16447764", "title": "", "text": "the following discussion in Wilder II, supra at 460, 195 USPQ at 429: Wilder’s discovery of the absence of skin toxicity in the claimed compound does not end the inquiry, because one who claims a compound, per se, which is structurally similar to a prior art compound must rebut the presumed expectation that the structurally similar compounds have similar properties. In re Hoch, supra [428 F.2d 1341, 57 CCPA 1292, 166 USPQ 406 (1970)]. Appellant has shown no actual difference [emphasis in original] in properties between the two compounds [claimed compound and prior art homologue] or any other evidence sufficient to rebut that expectation. [Emphasis added.] Appellants, as in Wilder II, have shown an actual unexpected difference in properties between the claimed compound and its isomers (only one isomer was involved in Wilder II). Also as in Wilder II, appellants’ evidence establishes that a single pri- or art homologue (disclosed in May) of the claimed compound, to wit, a -(-)-2'-hydroxy-2,5,9-trimethyl-6,7-benzomorphan, inherently possessed, unbeknownst to the prior art, the combination of properties of appellants’ compound. The thin veneer of similarity between Wilder II and the case at bar ends there. The appellant in Wilder II merely showed that while the isomer was toxic, the homologue and claimed compound were not. Although the court noted [supra at 461, 195 USPQ at 430] that this indicates “some degree of unpredictability,” it concluded that, on the record therein, the claimed compound would have been obvious. As alluded to by the court, the basis of the prima facie case of obviousness, at least to a major extent, is based on the presumed expectation that compounds which are similar in structure will have similar properties. The Wilder II court recognized that a showing of .actual difference in properties between the claimed compound and the structurally similar prior art compound over which it was rejected is not the only manner of rebutting this presumption. See In re Hoch, supra. But see In re Wilder, 429 F.2d 447, 57 CCPA 1314, 166 USPQ 545 (1970) (connected case to Wilder II). Implicit in Wilder II is that an applicant" }, { "docid": "9514060", "title": "", "text": "Í -C-C-C-C (1) (3) Isomer (Biswell) C N-(1-methylhexyl)- | N1-phenyl-£- -C-C-C-C-C-C phenylenediamine (1) (Hydrogens attached to the carbon atoms have been deleted for clarity.) Several alternative methods of preparation are described, some of which appellant refers to in his application as “well-known production techniques.” The Rejection In his final rejection, the examiner asserted that the claimed invention would have been obvious within the meaning of 35 U.S.C. § 103, in view of the fact:' that (1) the compound is structurally obvious, (2) that the compound is prepared by a similar process, (3) that the prior art compounds would be expected to possess similar properties, as is in fact shown by the decision [In re Wilder, note 1 supra] and (4) that the mere showing of an advantage in a specific use is not sufficient to lend patentable significance to a compound this closely related as set forth in numerous decisions. In his answer before the board, the examiner argued that decreased toxicity is not a sufficient difference over the prior art to render the claimed compound unobvious, since the claimed compound could be used as a gasoline additive, and that the appellant had failed to show the claimed compound to be a better rubber antidegradant than the isomer or homologue of the prior art. The board found that “the Examiner has made out a strong case of prima facie obviousness,” and “that appellant has failed to adequately rebut * * * [that] prima fa-cie case.” The board pointed out that, while appellant’s affidavit evidence demonstrated a reduced skin irritation using the claimed compound as compared to N-(l-me-thylhexyl)-N'-phenyl-p-phenylenediamine (the isomer) disclosed by Biswell, the evidence also illustrated that N-(l,3-dimethyl-butyl)-N '-phenyl-g-phenylenediamine (the homologue) is a lesser irritant than the claimed compound. Based on all the evidence, the board found that “appellant has failed to prove that the compound here claimed possesses unobvious properties relative to the compounds taught by the prior art of record.” The board also found that the decision in In re Wilder, supra note 1, (Wilder I) was not dispositive of the question of patenta-bility of the present claim" } ]

[ { "docid": "22352990", "title": "", "text": "from which an implied contract may be inferred. Having failed to raise any facts supporting a property interest, we find summary judgment is proper as to Conaway’s property interest claim. B. Liberty Interest “The concept of liberty recognizes two particular interests of a public employee: 1) the protection of his good name, reputation, honor, and integrity, and 2) his freedom to take advantage of other employment opportunities.” Miller v. City of Mission, Kan., 705 F.2d 368 (10th Cir.1983); Weathers v. West Yuma County School Dist. R-J-1, 530 F.2d 1335, 1338 (10th Cir.1976). For an employee to make a successful liberty deprivation claim, in addition to proving one of the above-recognized interests, he must also show that his dismissal resulted in the publication of information which was false and stigmatizing. Sipes v. United States, 744 F.2d at 1421. In the present case, nothing in the record suggests that appellant’s good name, reputation, honor, or integrity was stigmatized. Conaway only generally alleges that he has suffered damage to his personal and business reputation due to the city’s false accusations and wrongful termination. No specific facts are asserted to support this claim. The reasons for Conaway’s discharge, neglect of duties and insubordination, even when considered false, do not call into question his good name, reputation, honor, or integrity. In comparison, a liberty interest might be implicated by charges of “dishonesty or immorality” because such charge might seriously damage his standing and associations in the community, Roth, 408 U.S. at 573, 92 S.Ct. at 2707, but not by charges of insubordination. See Sullivan v. Stark, 808 F.2d 737, 739 (10th Cir.1987) (charge that park ranger was negligent or derelict in performing his duties did not implicate liberty interest); Asbill v. Housing Authority of Choctaw Nation, 726 F.2d 1499 (10th Cir.1984) (charge of disputing authority of a new agency director held not to stigmatize discharged employee); Sipes v. United States, 744 F.2d at 1422 (discharge for tardiness, unreliable behavior, and horseplay not a liberty interest infraction); Stritzl v. U.S. Postal Service, 602 F.2d 249, 252 (10th Cir.1979) (poor work habits and low productivity held not" } ]

[ { "docid": "13022991", "title": "", "text": "882, 885, 51 L.Ed.2d 92 (1977); Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Lawson v. Sheriff of Tippecanoe County, Ind., 725 F.2d 1136, 1138 (7th Cir.1984) (deprivation of occupational liberty exists when an employee is fired for publicly announced reasons that impugn moral character). We have recently observed that to state such a claim, a plaintiff must show that “(1) he was stigmatized by the defendant’s conduct; (2) the stigmatizing information was publicly disclosed; and (3) he suffered a tangible loss of other employment opportunities as a result of public disclosure.” Johnson v. Martin, 943 F.2d 15, 16 (7th Cir.1991); see also Ratliff v. City of Milwaukee, 795 F.2d 612 (7th Cir.1986); Munson v. Friske, 754 F.2d 683, 693 (7th Cir.1985). ' Since the complaint alleges the defendants discharged McMath in conjunction with publicly communicated, false statements that McMath either participated in or condoned criminal activity, it properly sets out a violation of McMath’s clearly established right to a name clearing hearing. See Codd, 429 U.S. at 628, 97 S.Ct. at 884. The defendants, citing Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), also contend that the complaint must fail because the allegations do not allege concurrent termination and publication, or actual malice by the defendants. Siegert, however, emphasized that the publication must occur in the context of termination. There, the defamatory statement only affected the plaintiff’s opportunities for future government employment; it was not made incident to the plaintiff’s loss of current employment. Siegert, at -, 111 S.Ct. at 1794. Here, in contrast, there is a nexus between the firing — the loss of current employment — and the publication sufficient to implicate a liberty interest cognizable under Siegert and prior case law. See Koch v. Stanard, 962 F.2d 605, 607-08 (7th Cir.1992) (Flaum, J., concurring) (noting that Siegert does not alter traditional rule that liberty interest is implicated when a government official’s publication of a defamatory statement stigmatizes" }, { "docid": "515852", "title": "", "text": "341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (Bishop)). An exception exists, however, in cases where an employee is terminated in connection with publicized allegations of illegal or improper conduct. Id. In Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (Roth), the Supreme Court held that a government employee has a liberty interest in his or her good name and reputation, which is entitled to protection when he or she is fired based on allegations of dishonesty, immorality, or illegality. To establish the deprivation of a liberty interest, a public employee must make a three-part showing: (1) that the public employer’s reasons for the discharge stigmatized the employee, seriously damaging his or her reputation or by foreclosing other employment opportunities; (2) that the employer made the reasons for the discharge public; and (3) that the employee denied the charges that led to the discharge. Speer, 276 F.3d at 984 (citing Coleman v. Reed, 147 F.3d 751, 754-55 (8th Cir.1998)) (additional citations omitted). Where this showing has been made, under the Constitution’s procedural due process protections, the employee must be provided with adequate notice and an opportunity to dispute the charges in a “name-clearing” hearing. Id. (citing Codd v. Velger, 429 U.S. 624, 627-28, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (per curiam) (Codd)) (additional citations omitted); Merritt v. Reed, 120 F.3d 124, 126 (8th Cir.1997) (citing Bishop, 426 U.S. at 349, 96 S.Ct. 2074). Based on the undisputed facts, the district court found that Hammer’s liberty interests were implicated by the December 15 Press Statement. The December 15 Press Statement criticized Hammer’s job performance and accused him of conduct that was “improper or even worse illegal” in connection with the City’s health insurance program and the award of City contracts, and would therefore create the type of stigma discussed in Roth. Slip op. at 8. In addition, Hammer presented evidence that he was confronted with the allegations during his job search and refused positions because of them, creating an issue of material fact as to whether the stigma affected his ability" }, { "docid": "1294810", "title": "", "text": "refute the charges. The defendants argue that mere reference to pending criminal proceedings is not stigmatizing when there is no allegation that the accused committed a criminal act and it is evident from the statement that the charges have been dropped. The defendants rely on Hadley v. County of Du-Page, 715 F.2d 1238, 1246 (7th Cir.1983), for this proposition. We find that case distinguishable. In Hadley the official stated that the plaintiff had not been fired based upon “any pending criminal indictments.” Id. The court rejected the argument that the reference was stigmatizing because the context of the statement made it clear that the officer was trying to convey the point that the plaintiff was discharged for misconduct unrelated to any criminal charges. Id. In this case, Reilly defended the department’s actions in arresting Andreu by arguing that the department found his actions to be criminal. In addition, Sapp alleged that Andreu sought to cover up his actions. These statements are qualitatively different from the ones in Hadley. At the time of Andreu’s discharge, it was clearly established that these statements were stigmatizing. See Owen v. City of Independence, Mo., 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 1406-07 n. 13, 63 L.Ed.2d 673 (1980) (statements alleging criminal acts “impugn[e] petitioner’s honesty and integrity” and constitute a violation under Paul and Roth). The defendants’ second argument is that it was not clearly established that these statements were made in the course of Andreu’s discharge. As a factual matter, we note that Andreu was discharged effective October 31, 1986 but was not notified of this fact until November 21, 1986. The defendants argue that since the statements appeared approximately one month prior to the notification, it would not have been clear that the statements were made in the course of Andreu’s discharge. Assuming for the sake of argument that the November date is the relevant one, we still find the defendants’ contention unavailing. From the article itself, it is clear that the defendants were currently considering An-dreu’s employment status. Given that both defendants referred to the pending decision regarding Andreu’s" }, { "docid": "1411289", "title": "", "text": "decision that did not directly impact him. The GHSA’s ruling was directed against Cedar Shoals High School. Plaintiff does not have a federally protected property interest in the games CSHS won. Even if, however, these defendants’ actions affected Plaintiffs job as a coach or as a teacher, summary judgment is still appropriate since the Court has already concluded that Plaintiff did not have tenure in his coaching position and he was not deprived of his teaching position without due process of law. Consequently, GHSA’s and Fordham’s motion for summary judgment on Plaintiffs claim that he was deprived of his property interests without due process of law is GRANTED. II. DUE PROCESS DEPRIVATION OF LIBERTY In Roth v. Bd. of Regents, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) the Supreme Court stated that a plaintiff must allege either public disparagement damaging to his standing in the community or a stigmatic injury in an employment interest likely to impair future work-related opportunities in order to invoke the procedural due process protection for a claim of injury to a liberty interest. The Eleventh Circuit standard for determining whether the deprivation of an individual’s liberty interest has occurred requires a plaintiff to prove: (1) a false statement (2) of a stigmatizing nature (3) attending a governmental employee’s discharge (4) made public (5) by the governmental employer (6) without a meaningful opportunity for employee name clearing. Buxton v. Plant City, 871 F.2d 1037, 1042 (11th Cir.1989). A. CCSD. Brewer claims that the release of the PPC’s investigative report to the public and press after the report had been presented by Hans Schacht at the CCSD meeting on February 1, 1990, deprived him of his liberty interest in his reputation without due process of law. CCSD, however, first argues that Plaintiff has not established the- falsity element necessary to implicate his liberty interest. A review of the PPC’s preliminary investigative report shows that it called Plaintiffs honesty into question, implied that he had previously been involved in grade changing incidents, implied he took part in improper grade changes, attacked his leadership" }, { "docid": "15868790", "title": "", "text": "vague or overbroad as applied to teacher who made comments with sexual connotations to students). Moreover, in view of the vulgarities that Vega permitted to be expressed, no reasonable jury could fail to find that the Defendants would have terminated Vega solely because they considered his conduct beyond the bounds of proper classroom performance, even if the College had no sexual harassment policy. C. Stigma-Plus Claim Vega contends that he was denied a liberty interest without procedural due process, grounding his alleged interest on an allegation that the Defendants stigmatized him by making defamatory statements in the course of terminating his employment. The Supreme Court has made clear that the right to “notice and an opportunity to be heard” are prerequisites to government action — including employment termination — that places a “person’s good name, reputation, honor, or integrity” at stake. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The charges must be made “public” by the government employer, Brandt v. Board of Cooperative Educational Services, 820 F.2d 41, 43 (2d Cir.1987), the employee must allege that the charges are false, id., and the alleged defamatory statements must be made “in the course of’ terminating the employment, see Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Vega contends that he was stigmatized by both a memo that was placed in his personnel file and by oral statements of some of the Defendants. Whether or not the alleged stigmatizing statements occurred after Vega’s termination, as the Defendants contend, or in the course of termination, as he contends, see Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 144 (2d Cir.1993) (liberty interest implicated only if defamatory statement made in the course of termination of employment), there was no violation of a federally protected right. As to the memo, it merely reports Vice-President English’s meeting with Vega on August 17, 1994, at which English asked Vega if the resident advisor’s notes fairly reflected the content of the clustering exercise and Vega replied that they did." }, { "docid": "6477685", "title": "", "text": "be involved where — in making the decision to terminate an employee — charges are made which may seriously damage the employee’s standing and association in the community. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). Secondly, the safeguards of the due process clause may come into play where the state, in dismissing an employee, has “imposed upon him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Id. Thus cases subsequent to Roth have held that a public employee who is discharged amidst allegations of dishonesty or immorality is entitled to a due process hearing, assuming the employee can demonstrate that the allegations had some stigmatizing effect. Similarly, courts have concluded that the process due requires a hearing where an employee is discharged in the wake of stigmatizing charges of fraud, or dishonesty in conducting financial affairs, or untruthfulness, mental illness, racism and felonious conduct, or distribution of pornography. In the instant case, Hoch was not dismissed amidst stigmatizing charges of this nature. Rather, the crux of plaintiff’s contention is that he was discharged from employment with the Court of Common Pleas of Fayette County because he persisted in running for political office. While plaintiff, in his own mind, undoubtedly views his termination as a blow to his reputation, this is not the type of stigmatizing allegation — akin to a charge of immorality or dishonesty — which may trigger the safeguards of the due process clause. Only if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination are the safeguards of the due process clause implicated. Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1976). In short, plaintiff’s contentions here boil down to a complaint that the Court of Common Pleas, in dismissing Hoch, acted upon a faulty reading of Pennsylvania law. But allegations of error in applying state law — while weighty matters — do not rise to the level of constitutional infractions. The proper avenue" }, { "docid": "22458295", "title": "", "text": "U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). But Velez complains of a less single-sourced injury. She alleges that the board member defendants, by making false charges of harassment and terrorism against Velez, created a significant public “stigma.” (Indeed, Velez asserts that the board member defendants caused their fabricated claims to appear in local newspapers, as well as in assorted radio and television programs.) It is undisputed, however, that the board members did not themselves directly impose the “plus” asserted by Velez-namely, her removal from office, which only Levy had the power to bring about. Velez’s “stigma-plus” claim, therefore, involves a “stigma” that did not originate from the same party who inflicted the “plus.” Given our clear holdings that “stigma” without “plus” is insufficient to support a “-stigma-plus” claim, and vice versa, see, e.g., Donato, 96 F.3d at 630, it might seem to follow that Velez’s complaint is fatally flawed. That is not, however, required by the precedents on this issue. Though we have never directly addressed the question, other circuits have approved of “stigma-plus” claims in which the “plus” was imposed separately from any explicit stigmatizing statement. For example, in McGhee v. Draper, 639 F.2d 639 (10th Cir.1981), the Tenth Circuit found a liberty deprivation where a number of parents and students made stigmatizing statements at school board meetings and asked for a specific “plus,” which the defendant school board eventually imposed by terminating the plaintiff. See id. at 643; McGhee v. Draper, 564 F.2d 902, 906-07 (10th Cir.1977) (earlier opinion giving factual background). In so doing, the Tenth Circuit noted that “Mypically, when one’s liberty interest is allegedly infringed upon by a discharge from employment, the termination or non-renewal will either explicitly state the stigmatizing factors or implicitly ratify some other stigmatizing allegations. Thus, the discharge will either cause or contribute to the alleged defamation. In either case, the defamed’s liberty ‘to engage in any of the common occupations of life’ is diminished, and the defamation has occurred ‘in the course of the termination of employment.’ ” McGhee, 639 F.2d at 643 (emphasis added) (quoting Roth, 408" }, { "docid": "23157347", "title": "", "text": "before us. I A Insofar as the court determines that the “stigmatization - or - foreclosure - of - future - employment” instruction was erroneous, I agree. Although the majority uses “and” in its statement of the proper rule, the opinion does not hold that the terminated employee must prove both stigmatization and foreclosure of future employment. I would give the district courts more guidance on this issue, however, than does the majority. Parsing the relevant statements in the United States Supreme Court cases I am satisfied that “stigmatization” sufficient to warrant recovery occurs when a charge might “seriously” damage the discharged employee’s community standing and associations — e.g., dishonesty or immorality. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). While Roth also mentions charges that put the employee’s “good name, reputation, honor, or integrity” at stake, id., clearly it is speaking in terms of a high level stigma that might affect future employment opportunities. See Paul v. Davis, 424 U.S. 693, 697, 96 S.Ct. 1155, 1158, 47 L.Ed.2d 405 (1976); Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976); Codd v. Vel-ger, 429 U.S. 624, 630, 97 S.Ct. 882, 885, 51 L.Ed.2d 92 (Brennan, J., dissenting) (1977), id. at 633, 637-38, 97 S.Ct. at 887, 889 (Stevens, J., dissenting); Owen v. City of Independence, 445 U.S. 622, 661-62, 100 S.Ct. 1398, 1420-21, 63 L.Ed.2d 673 (Powell, J., dissenting) (1980) (The pivotal question after Roth is whether the charges “so blackened the employee’s name as to impair his liberty interest in his professional reputation.”). Charges are not stigmatizing enough to rise to a constitutionally protected liberty interest unless they involve allegations of dishonesty, immorality, or unprofessional or illegal conduct of the type that would be expected to seriously diminish employment opportunities. Charges of poor job performance, negligence, tardiness, or even insubordination, would not rise to the level of a violation of a protected liberty interest. I believe a fair implication from the Supreme Court decisions is that the discharged employee does not have to prove" }, { "docid": "1294809", "title": "", "text": "with his discharge. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The defendants argue that they are entitled to qualified immunity because it was not clearly established that the statements they made as police officers concerning Andreu’s arrest constituted a due process violation. In Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1042 (11th Cir.1989), this court noted that in order for a discharged government employee to succeed in showing a violation of a liberty interest, the plaintiff must show: (1) a false statement of a stigmatizing nature; (2) attending a governmental employee’s discharge; (3) made public by the governmental employer without a meaningful opportunity for the employee to refute the charge. In this case, the defendants challenge whether it was clearly established that (1) the statements were stigmatizing; (2) that they were made in the course of the plaintiff’s discharge; and (3) it was necessary to give Andreu a hearing to refute the charges. The defendants argue that mere reference to pending criminal proceedings is not stigmatizing when there is no allegation that the accused committed a criminal act and it is evident from the statement that the charges have been dropped. The defendants rely on Hadley v. County of Du-Page, 715 F.2d 1238, 1246 (7th Cir.1983), for this proposition. We find that case distinguishable. In Hadley the official stated that the plaintiff had not been fired based upon “any pending criminal indictments.” Id. The court rejected the argument that the reference was stigmatizing because the context of the statement made it clear that the officer was trying to convey the point that the plaintiff was discharged for misconduct unrelated to any criminal charges. Id. In this case, Reilly defended the department’s actions in arresting Andreu by arguing that the department found his actions to be criminal. In addition, Sapp alleged that Andreu sought to cover up his actions. These statements are qualitatively different from the ones in Hadley. At the time of Andreu’s discharge, it" }, { "docid": "2421633", "title": "", "text": "allegations quickly became part of the public record and have been conveyed to at least one other law enforcement department.” Doc. 17 at 19 (citation omitted). Plaintiff claims he was entitled to a name-clearing hearing, which the Village did not provide to him. „ Defendants argue that if there is no defamation claim because of qualified privilege, a claim for infringement of a liberty interest also cannot survive. The Fourteenth Amendment to the United States Constitution protects liberty interests such as a person’s reputation, good name, honor, and integrity. Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989). Plaintiff clearly possessed a liberty interest in his reputation. A plaintiff cannot establish a due process violation, however, through defamation alone. Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir.2002) (citing Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). A “nontenured employee [who] shows that he [or she] has been stigmatized by the voluntary, pubhc dissemination of false information in the course of a decision to terminate his [or her] employment” is entitled to an opportunity to clear his or her name. Chilingirian, 882 F.2d at 205. The Sixth Circuit requires a plaintiff to establish five elements to demonstrate deprivation of a liberty interest. “First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment.” Brown v. City of Niota, 214 F.3d 718, 722 (6th Cir.2000) (citing Ludwig, 123 F.3d at 410). “Second, a plaintiff is not deprived of his liberty interest when - the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance.” Brown, 214 F.3d at 722-23 (citing Ludwig, 123 F.3d at 410). A plaintiff must prove the employer made a statement that might seriously damage the employee’s reputation in the community or might impose a stigma precluding the employee from other employment. Ludwig, 123 F.3d at 410 (citing Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). A plaintiff must show a “moral stigma such as immorality or dishonesty to show a deprivation of liberty.” Ludwig, 123" }, { "docid": "1294808", "title": "", "text": "“[TJhere certainly are areas (of Andreu’s case) that trouble me.” Sapp said. “I think in the whole incident there were things done by Bill to create an atmosphere that everything was OK, when in fact it wasn’t.” Sapp said. “I have partially reviewed the investigation, and I’ll probably make a decision about his job in a couple days.” Rl-1 at Exhibit B. In the same article, Reilly was quoted as saying: “[W]e found the criminality in that case, even if other agencies didn’t.” Chief Deputy William Reilly said. “There was probably cause for that arrest.” Id. Later in the article Reilly noted: “I don’t know what the sheriff will decide, but personally, I can’t see why he wants to come back here.” Reilly said. “Before all this happened, (Andreu) put out a lot of work. Now, I think he’d find it very hard working with the men back here.” Id. Andreu claims that these statements were false and stigmatizing and therefore, violated his liberty interest in his reputation because the statements were made in connection with his discharge. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The defendants argue that they are entitled to qualified immunity because it was not clearly established that the statements they made as police officers concerning Andreu’s arrest constituted a due process violation. In Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1042 (11th Cir.1989), this court noted that in order for a discharged government employee to succeed in showing a violation of a liberty interest, the plaintiff must show: (1) a false statement of a stigmatizing nature; (2) attending a governmental employee’s discharge; (3) made public by the governmental employer without a meaningful opportunity for the employee to refute the charge. In this case, the defendants challenge whether it was clearly established that (1) the statements were stigmatizing; (2) that they were made in the course of the plaintiff’s discharge; and (3) it was necessary to give Andreu a hearing to" }, { "docid": "2703389", "title": "", "text": "continued employment with KCHC, although the Complaint asserts only a liberty interest. A liberty interest is implicated where the terms of the dismissal involve charges of a damaging character that would jeopardize a person’s reputation because such charges can create a near-inescapable stigma, depriving the employee of future employment opportunities. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 573-74, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Winegar v. Des Moines Indep. Comm. Sch. Dist., 20 F.3d 895 (8th Cir.1994). A property interest is not constitutionally created but depends on an outside source such as state law or contract between the parties. Id. at 899. 1. Liberty Interest To establish a claim for deprivation of due process based on infringement of a liberty interest, Wright must establish that the reason for his discharge stigmatized him, the Defendants made those reasons public, and he denied the charges. Coleman v. Reed, 147 F.3d 751, 755 (8th Cir. 1998). Wright asserts he was stigmatized because Defendants’ statements damaged his reputation, honor, and good name. “The requisite stigma has generally been found when an employer has accused an employee of dishonesty, immorality, criminality, racism, and the like.” Winegar, 20 F.3d at 899. In Winegar, the Eighth Circuit found that allegations of child abuse implicated the liberty interest of the plaintiff teacher. Id. In Shands v. City of Kennett, 993 F.2d 1337 (8th Cir.1993), the Circuit found a city official’s statements to the press that the plaintiff was discharged for insubordination and misconduct “did not create the level of stigma required to implicate a constitutionally protected liberty interest.” Id. at 1347; see also Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (where at-will public employee is discharged and the reasons are communicated only to the employee and in litigation documents, no liberty interest is implicated); Wellner v. Minn. State Jr. Coll. Bd., 487 F.2d 153 (8th Cir.1973) (termination based on allegations of racism required hearing); Hostrop v. Bd. of Jr. Coll. Dist. No. 515, 471 F.2d 488, 494 (7th Cir.1972) (plaintiff entitled to hearing where dismissal involved" }, { "docid": "12073695", "title": "", "text": "in the record indicates that the statements made by Merrill and Gattis at the February 10, 1981, meeting, i.e., that someone was “padding the books” and that the co-op projects were being “dragged out,” “were made in connection with the abolition of Plaintiff’s position.” Even were we to assume, arguendo, that Ewers had established the first three elements of his alleged deprivation of a liberty interest, he nevertheless failed to establish the fourth and fifth elements. The court instructed the jury that the fourth element Ewers had to prove by a preponderance of the evidence in order to establish a deprivation of a liberty interest was: That those accusations stigmatized Plaintiff in that they had the general effect of curtailing his future freedom of choice with regard to employment opportunities. (R., Vol. I at 215.) Although the court did not elaborate on the “stigmatization” required to establish a liberty interest violation, we believe that it is appropriate to do so. In Asbill v. Housing Authority of Choctaw Nation, 726 F.2d 1499, 1503 (10th Cir.1984), we stated: ****** In a series of cases, the Court has held that for an employee to make a successful liberty deprivation claim she must show that her dismissal resulted in the publication of information which was false and stigmatizing ... [Ajssuming that Thompson’s statements were false and published, it is doubtful that these statements were of the magnitude that could be considered “stigmatizing.” ****** The Supreme Court has indicated that for statements to be stigmatizing they must rise to such a serious level as to place the employee’s good name, reputation, honor, or integrity at stake. Board of Regents v. Roth, supra, 408 U.S. [564] at 573, 92 S.Ct. [2701] at 2707 [33 L.Ed.2d 548] (1971). As an example, the Court has noted that a charge of dishonesty or immorality would be stigmatizing. Id. Such charges attach like a “badge of infamy” to an employee — how can they be satisfactorily explained or justified to future employers? (footnotes omitted.) Under Asbill, statements are stigmatizing if they “place the employee’s good name, reputation, honor, or integrity" }, { "docid": "23157346", "title": "", "text": "need it be pre-termination, or would some post-termination hearing or name-clearing opportunity be adequate?” Melton v. City of Oklahoma City, 888 F.2d 724, 725 (10th Cir.1989). We intended to clear up confusion arising out of our prior decisions for the benefit of the district courts and future panels of this court. The majority opinion, however, reverses the panel opinion and the judgment below on the basis of an issue never discussed in either the majority or the dissenting panel opinion, see Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir.1989), or briefed or argued in the en banc rehearing. The majority perceives an injustice to the defendants and is determined to remedy that injustice, despite the fact doing so prevents the en banc court from reaching many of the problems it intended to resolve. Folklore has it that one of the ancients on our court once declared, “When this court starts out to do justice, all Hell can’t stop it!” I wish I could agree that the majority does justice in the case before us. I A Insofar as the court determines that the “stigmatization - or - foreclosure - of - future - employment” instruction was erroneous, I agree. Although the majority uses “and” in its statement of the proper rule, the opinion does not hold that the terminated employee must prove both stigmatization and foreclosure of future employment. I would give the district courts more guidance on this issue, however, than does the majority. Parsing the relevant statements in the United States Supreme Court cases I am satisfied that “stigmatization” sufficient to warrant recovery occurs when a charge might “seriously” damage the discharged employee’s community standing and associations — e.g., dishonesty or immorality. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). While Roth also mentions charges that put the employee’s “good name, reputation, honor, or integrity” at stake, id., clearly it is speaking in terms of a high level stigma that might affect future employment opportunities. See Paul v. Davis, 424 U.S. 693, 697, 96 S.Ct. 1155," }, { "docid": "22137230", "title": "", "text": "the district court’s order granting summary judgment to the defendants on Clemons’ first amendment claim. III. Because Clemons’ discharge, standing alone, was not such a blight upon his good name, reputation, honor, or integrity as to constitute a deprivation of liberty, his mere discharge — whether for no reason or for permissible reasons — did not implicate the due process requirements of the fourteenth amendment. See Dennis v. S. & S. Consolidated Rural High School Dist., 577 F.2d 338, 340 (5th Cir. 1978); Kaprelian v. Texas Woman’s University, 509 F.2d 133, 139 (5th Cir. 1975). To prevail on his fourteenth amendment claim, Clemons must first establish that his termination was attended by stigmatizing charges which “might seriously damage his standing and associations in his community” or foreclose “his freedom to take advantage of other employment opportunities.” Dennis, 577 F.2d at 342-3; see Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) (dictum). If he so establishes, he must show that he was deprived of the due process hearing to refute the charges to which he was then entitled. Dennis, 577 F.2d at 343, 344. A. It is undisputed that in connection with his termination, Clemons was the subject of at least potentially stigmatizing charges. He was accused of creating dissension and disturbance within the department, obstinacy and disrespect for his superiors, slander, hostile relations with his colleagues and neighbors, provoking fights, and unlawfully using police facilities to investigate a neighbor’s criminal record for personal reasons. The district court, however, held that Clemons was not entitled to a due process hearing on the charges because the required stigma must involve dishonesty or immorality rather than such mere accusations of inability to get along with others as it concluded were involved in this case. For this distinction, the district court relied on two cases, neither of which supports its holding. The court asserted first that the Supreme Court in Board of Regents v. Roth, supra, distinguished between a stigma such as dishonesty or immorality and a charge of inability to get along with others," }, { "docid": "2421634", "title": "", "text": "is entitled to an opportunity to clear his or her name. Chilingirian, 882 F.2d at 205. The Sixth Circuit requires a plaintiff to establish five elements to demonstrate deprivation of a liberty interest. “First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment.” Brown v. City of Niota, 214 F.3d 718, 722 (6th Cir.2000) (citing Ludwig, 123 F.3d at 410). “Second, a plaintiff is not deprived of his liberty interest when - the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance.” Brown, 214 F.3d at 722-23 (citing Ludwig, 123 F.3d at 410). A plaintiff must prove the employer made a statement that might seriously damage the employee’s reputation in the community or might impose a stigma precluding the employee from other employment. Ludwig, 123 F.3d at 410 (citing Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). A plaintiff must show a “moral stigma such as immorality or dishonesty to show a deprivation of liberty.” Ludwig, 123 F.3d at 410 (citing Roth, 408 U.S. at 573, 92 S.Ct. 2701). “Third, the stigmatizing statements or charges must be made pubhc. Fourth, the plaintiff must claim that the charges made against him were false. Lastly, the public dissemination must have been voluntary.” Brown, 214 F.3d at 728 (citing Ludwig, 123 F.3d at 410). Before a plaintiff may assert deprivation of a liberty interest, he or she must, however, show that he or she requested a name-clearing hearing and was denied a hearing. Quinn, 293 F.3d at 322 (citing Brown, 214 F.3d at 723; Ludwig, 123 F.3d at 410-11). There is no assertion in the complaint or evidence in the record that plaintiff asked for a name-clearing hearing. Absent such a request, plaintiff cannot prevail on this claim. Id. CONCLUSION It is, therefore, ORDERED THAT 1. Defendants’ motion for summary judgment be, and hereby is, denied, and plaintiffs motion for summary judgment be, and hereby is, granted as to the breach of contract claim and the § 1983 claim for deprivation of a property interest;" }, { "docid": "2453600", "title": "", "text": "common occupations of life” without due process of law. See Board of Regents v. Roth, 408 U.S. 564, 572-73, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). In Roth, the Supreme Court held that a public employer could be held liable for a procedural due process violation for terminating an employee if the employer made a charge “that might seriously damage [the terminated employee’s] standing and associations in his community” or “imposed on [a terminated employee] a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.”' Roth, 408 U.S. at 573, 92 S.Ct. at 2707. The Court said that the requisite stigma could result from a charge of “dishonesty” or “immorality.” Id. In this lawsuit, Campanelli concedes that the defendants did not breach his contract by firing him, and does not, therefore, complain about his termination per se. Rather, he claims that he was entitled to a name-clearing hearing, at or near the time of his termination, that could have mitigated the effect of the defendants’ statements. Campanelli complains that he was denied notice and an opportunity to be heard, and as a result, the defendants’ public statements regarding his termination have made it impossible for him to secure a new job as a college basketball coach. Campanelli seeks damages for mental suffering, emotional distress, and loss of income due to his inability to get another job. In dismissing this action under Federal Rule of Civil Procedure 12(b)(6), the district court held that Campanelli failed to allege facts that could prove three of the required elements of a Roth claim. First, the court held that Campanelli failed to allege that the defendants’ statements stigmatized him within the meaning of Roth. Second, the court held that Campanelli failed to allege that the defendants’ statements were made “in the course of’ his termination, as required by Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976). Finally, the court held that Campanelli failed to allege that the defendants’ statements were “substantially false,” as required under Codd v. Velger, 429 U.S. 624," }, { "docid": "22236704", "title": "", "text": "existed at the time summary judgment was granted. Gulf Union Industries, Inc. v. Formation Sec., Inc., 842 F.2d 762, 765 (5th Cir.1988); DeBardeleben v. Cummings, 453 F.2d 320 (5th Cir.1972). In inquiring whether Moore was deprived of a protected liberty interest without due process, in the context of public employment, we recognize that a public employee has the right to be free from charges by the state that publicly compromise her good name, reputation, honor or integrity, unless she is afforded notice and an opportunity to refute those charges. Board of Regents v. Roth, 408 U.S. 564, 572-75, 92 S.Ct. 2701, 2706-08, 33 L.Ed.2d 548, 558-59 (1972). In order to establish the deprivation of a liberty interest, the employee may show either that she was terminated without notice and an opportunity to be heard for a reason which was (i) false, (ii) stigmatizing and (iii) published, Huffstutler v. Bergland, 607 F.2d 1090, 1092 (5th Cir.1979), or that she was denied other employment opportunities by the state as a result of a stigmatizing termination, for which she did not receive prior notice and a name clearing hearing. Board of Regents v. Roth, 408 U.S. at 573-74, 92 S.Ct. at 2707. When the trial court granted summary judgment on the liberty interest claim in April 1985 it found that such judgment was appropriate because Moore failed to meet the Hujfstutler standard. The trial court found that no representations of dishonesty or immorality were made against any of the plaintiffs nor were there any other charges that could be stigmatizing to any of the plaintiffs. The trial court also found that the changes and terminations of employment status had not been made “public” by any of the defendants and that the decision had only been made known in the workplace. This absence of “publication” must mean, consequently, that Moore could not have been denied subsequent employment opportunities due to the dissemination by the Board or Coleman of information about her discharge at Threadgill. On review, we conclude for these reasons that Moore’s liberty interest claim properly failed on summary judgment. Also we find" }, { "docid": "11710369", "title": "", "text": "Petitioner’s second claim is that defendants stigmatized him by publicizing allegations impugning his professional competence and his ethics; he asserts entitlement under the Fourteenth Amendment to a name-clearing hearing. Our courts have established that the “liberty” interest protected by the due process clause includes in certain circumstances the right to contest at a hearing public, stigmatizing governmental accusations that impose a substantial disability. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971) (holding that state law authorizing designated persons to prohibit alcohol sales to alleged problem drinkers by publicly posting their names violated due process clause because no notice or hearing was provided before posting). Because dismissal from employment for stigmatizing reasons can imperil the opportunity to earn one’s living in one’s profession, the liberty interest cause of action has most pointedly focussed on stigmatizing statements in the context of dismissal. See Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) (establishing that liberty interest creates right to name-clearing hearing when government makes stigmatizing charges in connection with decision not to rehire employee, though finding that simple dismissal from non-tenured, one-year appointment not “stigmatizing,” so no hearing required); Brandt v. Board of Coop. Educ. Seros., 820 F.2d 41, 43 (2d Cir.1987) (liberty interest implicated when public governmental charges accompanying dismissal impose stigma that impairs opportunity to obtain other employment); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2d Cir.1980) (“It is well-settled that an individual’s liberty can be implicated when a governmentally imposed stigma restricts his ability to seek and obtain employment.”). The complaint asserts that at the time O’Neill was discharged from his position, local newspapers wrote that anonymous sources in city government told them that O’Neill was “incompetent,” could “no longer do the job,” had “poor relationships” with state agencies, did work that was not “up to par,” and was “slopp[y].” The complaint attributes these statements to the defendants and alleges that they were false. In an affidavit filed in answer to defendants’ motion for judgment on the pleadings, O’Neill added reference" }, { "docid": "3506575", "title": "", "text": "L.Ed.2d 684 (1976) (“To impinge on a liberty interest, the stigmatizing information must be made public by the offending governmental entity.”). Moreover, this court has reviewed the Albuquerque Journal article of April 28, 1988, which plaintiff states is typical of all other unnamed articles, and does not believe that it implies that plain tiff was fired for stealing the money. If anything, the article implies that Russillo was fired because Chief Justice Scarborough was dissatisfied with Russillo’s management of Metropolitan Court funds. Reports that an employee did not get along with superiors, or. that job performance was unsatisfactory, do not satisfy the third element which requires that the publication be “stigmatizing.” See Asbill, 726 F.2d 1499 (10th Cir.1984) (discharge of agency employee for disputing authority of supervisor does not implicate liberty interest); Hadley v. DuPage County, 715 F.2d 1238, 1248 (7th Cir.1983) cert. denied, 465 U.S. 1006, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984) (dismissal of county superintendent for mismanagement does not impinge liberty interest). To be stigmatizing, published statements “must seriously damage his associations in the community” such that the plaintiff’s “good name, reputation, honor, or integrity are at stake.” Board of Regents v. Roth, 408 U.S. 564, 573-74, 92 S.Ct. 2701, 2707-08, 33 L.Ed.2d 548 (1972). If, for example, the articles had contained a false statement from one of the defendants that plaintiff was fired for stealing Metropolitan Court funds, then the third requirement of stigmatizing effect would be met. See id. at 573, 92 S.Ct. at 2707 (charge of dishonesty would be stigmatizing). But plaintiff has failed to show that this occurred. Based upon the foregoing, the deprivation of liberty claim is dismissed. III. CONTRACT CLAIM Plaintiff alleges that he was wrongfully terminated from his employment as Court Administrator in direct contravention of New Mexico statutory law and judicially promulgated personnel rules, which plaintiff claims constituted an employment contract. This pendent state law claim will be analyzed under New Mexico contract law. In Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980), the New Mexico Supreme Court held that an at-will employee had an implied employment" } ]

[ { "docid": "22179439", "title": "", "text": "might agree with Carradine, having held that district courts do not have the authority to impose jury costs. See United States v. Mink, 476 F.3d 558, 564 (8th Cir.2007) (holding that “federal district courts are only allowed to impose as costs upon a criminal defendant those expenses expressly enumerated in § 1920,” and jury costs are not so enumerated); United States v. Banks-Giombetti, 245 F.3d 949, 953 (7th Cir.2001) (holding that “absent an authorizing statute, a Federal Rule of Criminal Procedure, or a local rule, a district court may not impose a sanction or other disadvantage for noncompliance with any requirement arising from a source other than a statute or rule without first giving the party actual notice of the requirement”). But neither of those cases involved a plain error review, and we are loath to conclude that a court that follows the established law has committed plain error. III. On August 12, 2010 — well after this case had been fully briefed and submitted for decision — Carradine moved to file a supplemental brief, arguing that he is entitled to the benefit of a recently enacted statute, the Fair Sentencing Act of 2010, Pub.L. 111-220,124 Stat. 2372 (Aug. 3, 2010). We granted the motion and accepted supplemental briefs from both parties. This new statute, which amends the existing law, raises the threshold for imposition of a 60-month statutory minimum prison sentence from five (5) grams of crack cocaine to 28 grams. See id. at Sec. 2(a)(2) (amending 21 U.S.C. § 841(b)(l)(B)(iii)). Carradine had 19 grams of crack cocaine, so he would be subject to the statutory minimum under the old version but not under the new. Consequently, Carradine argues that the new version of the statute should apply. The “general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974); United States v. Avila-Anguiano, 609 F.3d 1046, 1050 (9th Cir.2010); United" } ]

[ { "docid": "22140225", "title": "", "text": "not ... retroactive and thus does not apply to this case”); United States v. Brewer, 624 F.3d 900, 908 n. 7 (8th Cir.2010) (“[T]he Fair Sentencing Act contains no express statement that it is retroactive, and thus the ‘general savings statute,’ 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed.”); United States v. Bell, 624 F.3d 803, 814 (7th Cir.2010) (“Like our sister circuits that have considered this issue, [ ] we conclude that the savings statute operates to bar the retroactive application of the FSA.”); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam) (affirming ten-year mandatory minimum sentence under 21 U.S.C. § 841 “because the FSA took effect in August 2010, after appellant committed his crimes, [and] 1 U.S.C. § 109 bars the Act from affecting his punishment”); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010) (affirming sixty-month mandatory minimum sentence because the FSA “contains no express statement that it is retroactive nor can we infer any such express intent from its plain language”). We find this consistent line of authority to be compelling. IV. In conclusion, Appellants’ crimes are governed by the five-year statutory mandatory minimum sentence that was in effect at the time the crimes were committed. See 21 U.S.C. § 841(b)(l)(B)(iii) (2006). Accordingly, the sentences imposed by the District Court will be affirmed. . Section 846 of Title 21 U.S.C. provides that ”[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Thus, a conspiracy to distribute the minimum quantity of crack cocaine triggering a mandatory prison term of at least five years carries with it the same sentence as the substantive drug trafficking crime delineated in 21 U.S.C. § 841(b)(1)(B). . We consolidated the appeals of Reevey, No. 10-1812, and Williams, No. 10-1834, by order dated August 30, 2010. . The government asserts that Reevey and Williams failed to preserve" }, { "docid": "23077261", "title": "", "text": "reversed its position on the applicability of the FSA to Dixon. Before the District Court and, until now, before this Court, the Government argued that the Act should not apply to defendants whose offense conduct predated the FSA but were sentenced after. Having determined that its previous analysis of the Act was in error, the Government now agrees with the position set forth by Dixon in this appeal. . As a threshold issue, we determine that our previous decision in United States v. Reevey, 631 F.3d 110 (3d Cir.2010), upon which the District Court relied, does not resolve the question presented in this appeal. When considering whether a law applies retroactively, the question is always \"to whom”? In Reevey, we held that it did not apply retroactively to the group comprised of defendants who committed their crimes and who were sentenced before the Act was enacted. In doing so, we joined every Court of Appeal to consider the issue. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam). The \"to whom” question here is different. The issue in this case is whether the FSA applies to the separate group of defendants who committed their crimes before the Act was enacted, but who were sentenced afterwards. We specifically abstained from answering this question in Reevey. 631 F.3d at 115 n. 5 (distinguishing a defendant in Dixon's position from Reevey because Reevey, unlike Dixon, committed his crime and was sentenced before the FSA was enacted). Our answer to the question whether Congress intended to apply the FSA to one group — defendants in Reevey's position — has no bearing on whether Congress intended to apply the FSA to another — defendants in Dixon’s position. See United States v. Fisher, 635 F.3d 336, 339 (7th Cir.2011) (concluding" }, { "docid": "15673724", "title": "", "text": "cocaine penalties that undermine the Constitution's promise of equal treatment for all Americans.”); id. at SI0491 (statement of Sen. Richard Durbin) (\"There is widespread and growing agreement that the Federal cocaine and sentencing policy in the United States today is unjustified and unjust.”). . The initial bill proposed a 1:1 crack/powder sentencing ratio, 155 Cong. Rec. S10490 (daily ed. Oct. 15, 2009) (statement of Sen. Richard Durbin). The Senate Judiciary Committee amended the bill to the 18:1 ratio as a \"bipartisan compromise.” 156 Cong. Rec. S1681 (daily ed. Mar. 17, 2010) (statement of Sen. Richard Durbin). . See United States v. Glover, 398 Fed.Appx. 677, 680 (2d Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 1582, 179 L.Ed.2d 490 (2011); United States v. Reevey, 631 F.3d 110, 113-15 (3d Cir.2010); United States v. McAllister, 401 Fed.Appx. 818, 820 n. * (4th Cir.2010) (per curiam); United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 1706, 179 L.Ed.2d 637 (2011); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 2121, 179 L.Ed.2d 913 (2011); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 1805, 179 L.Ed.2d 670 (2011); United States v. Hall, 403 Fed.Appx. 214, 217 (9th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 1790, 179 L.Ed.2d 660 (2011); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam), cert. denied, - U.S. -, 131 S.Ct. 1833, 179 L.Ed.2d 788 (2011)." }, { "docid": "22448447", "title": "", "text": "to sentence below a statutory minimum, however, so Doggins has already received the lowest possible sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.2008). Doggins argues that the court applied a statute that has been repealed. Congress passed the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372, after Doggins was sentenced and had filed his appeal. As a result of that act, § 841(b)(1)(A) now requires that a defendant possess over 280 grams of crack cocaine, rather than 50 grams, for the 20-year mandatory minimum to apply. Dog-gins claims that the act is retroactive and that he should be resentenced under the new statute. That argument is without merit, however, because the Savings Statute, 1 U.S.C. § 109, provides that the reduction of any criminal sentence will not apply retroactively unless the relevant act expressly so states. The Fair Sentencing Act does not so state, so it does not apply retroactively. Doggins asserts that the Savings Statute does not apply to changes to remedies or procedures. See United States v. Blue Sea Line, 553 F.2d 445, 447-50 (5th Cir.1977). But, contrary to Doggins’s assertions, the Fair Sentencing Act imposes a change in sentencing, not a procedural or remedial change. Bell, 624 F.3d at 815 (“No procedures or remedies were altered by the passage of the FSA.”). The Fair Sentencing Act thus does not apply. The conviction and sentence are AFFIRMED. . On August 15, 2007, the police obtained an arrest warrant for Doggins, but that warrant was not executed. The police obtained both warrants with affidavits from Investigator Green, who had overseen the cocaine purchases. . By this time, Benson no longer represented Doggins, because the court had granted Dog-gins’s motion to appoint new counsel. . The sample introduced at trial had 60.63 grams of crack cocaine and 14.65 grams of powder cocaine. . See United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Gomes, 621 F.3d 1343," }, { "docid": "22225533", "title": "", "text": "the government had to take the additional position, contrary to Tickles herself, that the retroactivity issue had been properly preserved in the trial court. On the merits, the government’s Supplemental Brief had to admit the simplicity of its original position, founded largely on the Savings Statute, 1 U.S.C. § 109, which holds that the repeal of a criminal statute does not extinguish liability for violations of that statute unless the repealing statute so states expressly. Because the FSA does not expressly extinguish liability computed under the former threshold quantities for crack cocaine offenses, the prior law should apply to all conduct that predated enactment of the FSA on August 3, 2010. The Supplemental Brief, in contrast, adopts the reasoning of a few courts that have applied FSA where the illegal conduct predated its enactment but the sentencing occurred afterward. The government now reads the “intent” of Congress as creating “a necessary implication” that the revised statutory penalties must supersede the former penalty scheme “in all future sentencings.” To the government, “the analysis [now] turns on much more than the presence or absence of an express statement extinguishing incurred liability.” Needless to add, the appellant’s briefs, written before the government’s supplemental briefs, generally accord with the new analysis. This court has been influenced, if not bound, by our prior determination that the FSA was not retroactively applicable, despite its beneficent intentions, to conduct that occurred pre-enactment. United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011). Doggins reflected the common view of circuit courts. United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010). We have considered carefully the opinions of circuits that have spoken more recently to the question of the FSA’s retroactivity. See United States v. Dixon, 648 F.3d 195, 199-200 (3rd Cir.2011); United States v. Rojas, 645 F.3d 1234, 1237-38 (11th Cir.2011), vacated, reh’g" }, { "docid": "22044983", "title": "", "text": "oral argument, his case falls squarely within the ambit of our recent opinion in United States v. Bell, 624 F.3d 803 (7th Cir.2010). In Bell, we were also dealing with a defendant who had been convicted and sentenced and had an appeal pending when the FSA went into effect. We found that the general federal savings statute, 1 U.S.C. § 109, applies to the FSA and prevents it from operating retroactively. 624 F.3d at 815. Fisher asks us to rethink Bell. However, he makes this suggestion based not on case law, but on his own suggested interpretations of the FSA and the application of the savings statute thereto. We are not persuaded and decline to stray from our recent precedent in Bell. We further note that our sister circuits have likewise found that the savings statute bars retroactive application of the FSA. See United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010). The appeal of our other defendant, Edward Dorsey, presents a slight wrinkle because he was sentenced after the FSA went into effect. On June 3, 2010, Dorsey pled guilty to possessing 5.5 grams of crack cocaine with intent to distribute, in Kankakee, Illinois, on August 6, 2008. Because he had a prior felony drug convic tion, the mandatory minimum 10-year term was in play. Under the FSA, however, Dorsey would have had to possess at least 28 grams of crack in addition to the prior felony drug conviction to trigger the 10-year mandatory minimum. Dorsey was sentenced on September 10, 2010. At sentencing, the district judge declined to apply the FSA to Dorsey’s case, saying, “in this case the crime that you pled guilty to was ... two years before the President signed the legislation.” Dorsey was sentenced to 120 months. Dorsey argues that, even if the savings statute prevents retroactive application of the FSA, the relevant date for a retroactivity analysis is the date of sentencing, not the date of the commission of the criminal act, and therefore the FSA should have applied to him. Dorsey" }, { "docid": "14222199", "title": "", "text": "trigger mandatory minimum sentences. See United States v. Bell, 624 F.3d 803, 814 (7th Cir.2010). Further, the FSA provided the Sentencing Commission with the emergency authority to promulgate all necessary amendments to the Sentencing Guidelines within 90 days of the FSA’s August 3, 2010, enactment. FSA § 8, Pub.L. No. 111-220. Specifically, the Sentencing Commission was charged with “makfing] such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.” Id. The consequent amendments to the Sentencing Guidelines became effective no later than November 1, 2010. Under the FSA, a ten-year mandatory minimum applies to first-time trafficking offenses involving 280 grams or more of crack cocaine, while a five-year mandatory minimum applies to first-time trafficking offenses involving 28 grams or more of crack cocaine. 21 U.S.C. § 841(b)(1)(A)(iii), (b)(l)(B)(iii). Thus, the FSA amended the Anti-Drug Act of 1986 to lower the mandatory minimum sentence for first-time trafficking offenses involving between 50 and 280 grams of crack cocaine from ten years to five years. Compare § 841(b)(1)(A)(iii) (2006), with § 841(b)(1)(A)(iii) (2010). The FSA is silent as to whether it applies to all criminal sentencings taking place after its enactment or, conversely, to only criminal conduct occurring after its enactment. The district court sentenced Vera Rojas in September 2010 for conspiring with intent to distribute 71.8 grams of crack cocaine, among other offenses. If the court had sentenced Vera Rojas under the FSA, her offenses would have been insufficient to trigger the ten-year mandatory minimum sentencing provision. For the following reasons, we conclude that Vera Rojas’s sentence is subject to the FSA’s five-year mandatory minimum provision. 2. Case Law Vera Rojas argues that this Court’s statement in United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam) — “because the FSA took effect in August 2010, after appellant committed his crimes, [the general savings statute] bars the Act from affecting his punishment”— was merely dicta and is not controlling precedent. We need not consider this argument because, in any event, Gomes does not apply here. The record" }, { "docid": "22225534", "title": "", "text": "much more than the presence or absence of an express statement extinguishing incurred liability.” Needless to add, the appellant’s briefs, written before the government’s supplemental briefs, generally accord with the new analysis. This court has been influenced, if not bound, by our prior determination that the FSA was not retroactively applicable, despite its beneficent intentions, to conduct that occurred pre-enactment. United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011). Doggins reflected the common view of circuit courts. United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010). We have considered carefully the opinions of circuits that have spoken more recently to the question of the FSA’s retroactivity. See United States v. Dixon, 648 F.3d 195, 199-200 (3rd Cir.2011); United States v. Rojas, 645 F.3d 1234, 1237-38 (11th Cir.2011), vacated, reh’g en banc granted, 659 F.3d 1055, 2011 WL 4552364 (11th Cir. Oct. 4, 2011); United States v. Douglas, 644 F.3d 39, 42-46 (1st Cir.2011); United States v. Fisher, 635 F.3d 336, 339-40 (7th Cir.2011); United States v. Acoff, 634 F.3d 200, 202-03 (2d Cir.2011); United States v. Spires, 628 F.3d 1049, 1055 (8th Cir.2011). Having done so, we are persuaded by those that have relied heavily on Section 109 and its application to this statute, which fails to contain an express statement repealing the prior sentencing structure retroactively. See Fisher, 635 F.3d at 340; Acoff, 634 F.3d at 202-03; Spires, 628 F.3d at 1055; see also United States v. Holcomb, No. 11-1558, 657 F.3d 445, 2011 WL 3795170 (7th Cir. Aug. 24, 2011) (Judge Easterbrook, denying rehearing en banc). We conclude that the penalties prescribed by the FSA do not apply to federal criminal sentencing for illegal conduct that preceded the FSA’s enactment. The sentences imposed by the district courts in each of these cases are AFFIRMED. . As to Tickles, this court determines the" }, { "docid": "22299391", "title": "", "text": "the party's brief or point argued orally, and should not contain argument. Fed. R.App. P. 28(j). We disregard the submission to the extent it includes material outside these limitations. See Davis v. U.S. Bancorp, 383 F.3d 761, 763 (8th Cir. 2004). In any event, the letter raises no issues of import because the Fair Sentencing Act contains no express statement that it is retroactive, and thus the \"general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed. See United States v. Brown, 2010 WL 3958760, -Fed.Appx. -, -- (8th Cir.2010) (unpub.); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam); United States v. Carradine, 621 F.3d 575, 579-81 (6th Cir.2010). BRIGHT, Circuit Judge, concurring in part and dissenting in part. I concur in the denial of the motion to suppress and affirmance of Brewer’s convictions but dissent as to the sentence. Who could have guessed that President Eisenhower’s decision nearly sixty years ago to create a national system of interstate highways would have an effect on sentencing in Iowa today? Well, it has. In the Northern District of Iowa, cases arising on one side of the interstate go to one district court judge while cases arising on the other go to a second judge. And one active judge uses a 1:1 ratio between crack and powder cocaine when sentencing violators of crack cocaine laws while the other follows the sentencing guidelines— which here applied a 33:1 ratio. So in the Northern District of Iowa, the location of the crime relative to the interstate is a significant factor in crack cocaine sentencing. In my view, the difference in sentences between similar offenders should not depend on which side of the interstate a crime was committed or where the offender was arrested. See United States v. Ayala, 610 F.3d 1035, 1037-38 (8th Cir. 2010) (Bright, J., concurring) (discussing the need to reduce sentencing disparity in the post-Booker era). For Brewer’s crime of possessing, conspiring, and delivering approximately 150 grams of crack cocaine, the guidelines recommended a sentence" }, { "docid": "22448446", "title": "", "text": "Viewing the evidence in the light most favorable to the verdict, a rational jury could have found that the chemists’s report was sufficient to conclude Doggins possessed more than fifty grams of crack, despite the possible breach in the chain of custody. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Mann, 493 F.3d 484, 492 (5th Cir.2007). Finally, Doggins asserts that the estimate in the police report that there was 38.4 grams of crack cocaine and 27.069 grams of powder cocaine shows that the sample at trial was not the one recovered from his house. The estimate was merely a preliminary calculation that was later proven to be inaccurate. It does not provide sufficient reason to doubt the jury’s finding that there was more than 50 grams of crack cocaine taken from the house. VII. Doggins contends the district court erred by not considering the 18 U.S.C. § 3553(a) reasonableness factors when imposing the statutory mandatory minimum sentence. The district court does not have power to sentence below a statutory minimum, however, so Doggins has already received the lowest possible sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.2008). Doggins argues that the court applied a statute that has been repealed. Congress passed the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372, after Doggins was sentenced and had filed his appeal. As a result of that act, § 841(b)(1)(A) now requires that a defendant possess over 280 grams of crack cocaine, rather than 50 grams, for the 20-year mandatory minimum to apply. Dog-gins claims that the act is retroactive and that he should be resentenced under the new statute. That argument is without merit, however, because the Savings Statute, 1 U.S.C. § 109, provides that the reduction of any criminal sentence will not apply retroactively unless the relevant act expressly so states. The Fair Sentencing Act does not so state, so it does not apply retroactively. Doggins asserts that the Savings Statute does not apply to changes to remedies or procedures. See United States" }, { "docid": "22448438", "title": "", "text": "at Doggins’s home. On August 16, 2007, after confirming that the rocks contained cocaine, the police obtained a search warrant for Doggins’s house. They executed the warrant the next day, discovering drugs and a collection of drug paraphernalia. Later testing showed that the drugs included 60.63 grams of crack cocaine and 14.65 grams of powder cocaine, but the initial police report indicated that there were 38.4 grams of crack cocaine and 27.069 grams of powder cocaine. II. On February 8, 2008, Doggins moved to suppress the drugs found at his house. After a hearing on April 30, 2008, the district court denied the motion, holding that the good-faith exception applied because the police were objectively reasonable in relying on the search warrant. On September 15, 2008, Doggins moved to reopen the suppression hearing, complaining for the first time that his attorney, Denise Benson, had not allowed him to testify. After hearing testimony from Benson and Doggins, the court concluded that Doggins had never asked to testify, so it denied the motion. On November 12, 2008, Doggins submitted letters allegedly showing that he had written Benson in March 2008 with a request to testify, and on February 20, 2009, he filed a final motion to reopen the suppression hearing. The court denied that motion as well, and the jury found Doggins guilty on all counts after a three-day trial. The court sentenced Doggins to the twenty-year statutory minimum for distribution of over fifty grams of cocaine base by a defendant with a prior drug felony. 21 U.S.C. § 841(b)(1)(A) (2009). III. Doggins contends that the district court erred by refusing to reopen the suppression hearing to allow him to testify. To prevail, he must show an abuse of discretion. United States v. Hassan, 83 F.3d 693, 696 (5th Cir.1996). According to Doggins, the court should have reopened the hearing because Benson refused to allow him to testify at the first hearing despite his repeated requests to do so. The basis of his argument is two handwritten letters to Benson in which he requested to testify, dated March 14 and 26, 2008." }, { "docid": "22536537", "title": "", "text": "be applied retroactively. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). We agree with all eight circuits that have ruled on the issue that the FSA contains no express statement of retroactivity, nor can any such intent be inferred from its language. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011); United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir.2010); United States v. Diaz, 627 F.3d 930, 931 (2d Cir.2010) (per curiam); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010). Bullard argues that Congress’s instruction in the FSA to the Sentencing Commission to “promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable ...,” Pub.L. No. 111-220, evinces its intent to have the law apply retroactively. We disagree. Congress’s desire to have the FSA implemented quickly in no way suggests that it also intended to have the Act apply retroactively to defendants sentenced before it was passed. Congress knows how to explicitly provide for retroactive application when it so desires. See, e.g., Velasquez-Gabriel v. Crocetti 263 F.3d 102, 106-07 (4th Cir.2001) (collecting certain statutory provisions that Congress expressly stated should be applied retroactively). Bullard also argues that the Savings Statute should not apply here, as by its terms it applies only to the “repeal” of a statute, not to an amendment. But we have squarely held that “although § 109 specifically refers only to repealed statutes, it also applies to statutes changed by amendment.” Korshin v. C.I.R., 91 F.3d 670, 673 n. 5 (4th Cir.1996). We find similarly unpersuasive Bullard’s argument that the FSA is a “remedial,” “error-correcting statute” that can apply on direct review even if not explicitly made retroactive. See Appellant’s Supp. Br. at 7; Rep. Br. at 14. The “error-correcting” exception to the Savings Statute is" }, { "docid": "14222202", "title": "", "text": "2008); Bell, 624 F.3d at 814 (Seventh Circuit stating that “[i]f Bell were sentenced today under the FSA, his distribution of 5.69 grams of crack cocaine would be insufficient to trigger the mandatory minimum sentencing provisions”); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010) (stating that the defendant first submitted a letter requesting re-sentencing under the FSA on August 27, 2010, where the record indicates that defendant was originally sentenced in November 2009); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010) (“[The FSA] is not, however, retroactive and thus does not apply to this case. It does, on the other hand, relegate this case to a relatively short shelf-life, inasmuch as defendants being sentenced henceforth will be sentenced under a different applicable ratio.” (emphasis added)). But see United States v. Fisher, 635 F.3d 336, 340 (7th Cir.2011) (holding that the relevant date for the FSA “is the date of the underlying criminal conduct, not the date of sentencing,” but stating, “[w]e have sympathy for the two defendants here, who lost on a temporal roll of the cosmic dice and were sentenced under a structure which has now been recognized as unfair”). We do not disagree with our sister circuits in one major sense — -absent further legislative action directing otherwise, the general savings statute prevents a defendant who was sentenced prior to the enactment of the FSA from benefitting from retroactive application. Further, we share in the well-reasoned view of the First Circuit that Congress intended for the FSA to apply immediately. See Douglas, 644 F.3d at 43-44, 2011 WL 2120163, at *4 (“It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums.”). 3. The Savings Clause of 1 U.S.C. §109 The government argues that Congress did not intend for the FSA to apply to defendants like Vera Rojas, as a contrary conclusion would render the general savings statute, 1 U.S.C. § 109," }, { "docid": "22140224", "title": "", "text": "of criminal proceedings. United States v. Caldwell 463 F.2d 590, 594 (3d Cir.1972) (citation omitted); see also Marrero, 417 U.S. at 664, 94 S.Ct. 2532 (explaining that defendant’s argument for leniency was “addressed to the wrong governmental branch. Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.”). The general Savings Statute requires that any intent to “release or extinguish any penalty” under an existing statute be “expressly provide[d]” in the subsequent congressional enactment. The FSA does not contain an express statement that the increase in the amount of crack cocaine triggering the five-year mandatory minimum is to be applied to crimes committed before the FSA’s effective date. Nor does it provide that those sentenced before the FSA’s effective date are to be re-sentenced. Therefore, the FSA cannot be applied to Reevey and Williams. Our conclusion is consistent with the decision of every Court of Appeals to have addressed this issue. See United States v. Lewis, 625 F.3d 1224, 1229 (10th Cir.2010) (FSA “is not ... retroactive and thus does not apply to this case”); United States v. Brewer, 624 F.3d 900, 908 n. 7 (8th Cir.2010) (“[T]he Fair Sentencing Act contains no express statement that it is retroactive, and thus the ‘general savings statute,’ 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed.”); United States v. Bell, 624 F.3d 803, 814 (7th Cir.2010) (“Like our sister circuits that have considered this issue, [ ] we conclude that the savings statute operates to bar the retroactive application of the FSA.”); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam) (affirming ten-year mandatory minimum sentence under 21 U.S.C. § 841 “because the FSA took effect in August 2010, after appellant committed his crimes, [and] 1 U.S.C. § 109 bars the Act from affecting his punishment”); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010) (affirming sixty-month mandatory minimum sentence because the FSA “contains no express statement that it is retroactive nor can we infer any such" }, { "docid": "15084450", "title": "", "text": "it. Reading the record in the light most hospitable to the government, and resolving credibility issues in favor of the verdict, we see more than enough evidence to support the jury's determination that Williams participated in a drug-trafficking conspiracy involving fifty or more grams of cocaine base. See United States v. Cruz-Rodriguez, 541 F.3d 19, 26 (1st Cir.2008) (reciting standard of review for assessing sufficiency). . (3.5 grams/week * seven weeks) + (forty grams) + (3.5 grams) = sixty-eight grams. The seven-week figure is presumably based on the assumption that there are four weeks in each month and that the baseline time period, from which one week is subtracted, is two months. . (3.5 grams/week) * (4.3 weeks/month) * (three months) + (forty grams) = 85.15 grams. . The government does not challenge the court’s sixty-month downward variance. . In addition to his sentencing argument described in text, he appears to argue that Churchill was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny; but that is a claim that must first be made in the district court under 28 U.S.C. § 2255. See, e.g., United States v. Gonzalez-Vazquez, 219 F.3d 37, 42 (1st Cir.2000) (reciting rule, collecting cases, and recognizing an exception not applicable here). . See United States v. Reevey, — Fed.Appx. -, ----, 2010 WL 5078239, at *2-*4 (3d Cir.2010) (unpublished); United States v. Wilson, - Fed.Appx. -, -, 2010 WL 4561381, at *2 (4th Cir.2010) (unpublished); United States v. Lewis, 625 F.3d 1224, 1228-29 (10th Cir.2010); United States v. Glover, -Fed.Appx.-,-, 2010 WL 4250060, at *2 (2d Cir.2010) (unpublished); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010) (dicta); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Hall, — Fed. Appx. -, --, 2010 WL 4561363, at *3 (9th Cir.2010) (unpublished)." }, { "docid": "22448448", "title": "", "text": "v. Blue Sea Line, 553 F.2d 445, 447-50 (5th Cir.1977). But, contrary to Doggins’s assertions, the Fair Sentencing Act imposes a change in sentencing, not a procedural or remedial change. Bell, 624 F.3d at 815 (“No procedures or remedies were altered by the passage of the FSA.”). The Fair Sentencing Act thus does not apply. The conviction and sentence are AFFIRMED. . On August 15, 2007, the police obtained an arrest warrant for Doggins, but that warrant was not executed. The police obtained both warrants with affidavits from Investigator Green, who had overseen the cocaine purchases. . By this time, Benson no longer represented Doggins, because the court had granted Dog-gins’s motion to appoint new counsel. . The sample introduced at trial had 60.63 grams of crack cocaine and 14.65 grams of powder cocaine. . See United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010)." }, { "docid": "22536536", "title": "", "text": "its merits. Bullard contends that the FSA should be interpreted to apply retroactively to cases pending on direct appeal. The government responds that application of the General Savings Statute (the “Savings Statute”), 1 U.S.C. § 109, bars the FSA’s retroactive application. We agree and join all of our sister circuits to have addressed the issue in holding that the Savings Statute does indeed preclude retroactive application of the FSA. The Savings Statute provides: The repeal of any statute shall not have the effect to release or extinguish any penalty ... incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty.... 1 U.S.C. § 109 (emphasis added). This rule fully applies in the sentencing context and bars “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense,” absent an express statement that the law is intended to be applied retroactively. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). We agree with all eight circuits that have ruled on the issue that the FSA contains no express statement of retroactivity, nor can any such intent be inferred from its language. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011); United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir.2010); United States v. Diaz, 627 F.3d 930, 931 (2d Cir.2010) (per curiam); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010). Bullard argues that Congress’s instruction in the FSA to the Sentencing Commission to “promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable ...,” Pub.L. No. 111-220, evinces its intent to have the law" }, { "docid": "23077262", "title": "", "text": "F.3d 803, 814-15 (7th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam). The \"to whom” question here is different. The issue in this case is whether the FSA applies to the separate group of defendants who committed their crimes before the Act was enacted, but who were sentenced afterwards. We specifically abstained from answering this question in Reevey. 631 F.3d at 115 n. 5 (distinguishing a defendant in Dixon's position from Reevey because Reevey, unlike Dixon, committed his crime and was sentenced before the FSA was enacted). Our answer to the question whether Congress intended to apply the FSA to one group — defendants in Reevey's position — has no bearing on whether Congress intended to apply the FSA to another — defendants in Dixon’s position. See United States v. Fisher, 635 F.3d 336, 339 (7th Cir.2011) (concluding that a case similar to Reevey did not control whether the Act applies to defendants like Dixon). . Although the repealing laws in Great Northern and Marrero contained statute-specific saving clauses, the Supreme Court did not limit implied repeals to that instance. . District Courts within the Third Circuit have misinterpreted our decision in United States v. Jacobs, 919 F.2d 10 (3d Cir.1990), as requiring an express statement of retroactivity and prohibiting consideration of congressional intent in deciding whether to apply the FSA to defendants in Dixon's position. See, e.g., United States v. Dickey, 759 F.Supp.2d 654, 659-60 (W.D.Pa.2011); United States v. Burgess, No. 2:09-CR-150, 2010 WL 5437265, at *2 (W.D.Pa. Dec. 27, 2010); United States v. Crews, 755 F.Supp.2d 666, 671 (W.D.Pa. 2010). In Jacobs, the defendant argued that the legislative history of the repealed statute should be relevant to whether the new statute saved the old penalty. See 919 F.2d at 12. Rejecting this argument, Jacobs made clear that the legislative history of the repealed law was of no relevance to the analysis." }, { "docid": "22448437", "title": "", "text": "JERRY E. SMITH, Circuit Judge: Johnnie Doggins was convicted of two counts of distributing a controlled substance and one count of possession of over fifty grams of a mixture containing cocaine, all in violation of 21 U.S.C. 841(a)(1). He challenges the denial of his suppression motion, the sufficiency of the evidence, and the calculation of his sentence. He also argues that he received ineffective assistance of counsel during the suppression hearing and that the district court erred by refusing to reopen the suppression hearing to allow him to testify. I. On July 30, 2007, police used a confidential informant to buy cocaine from Dog-gins. The informant was driving with an undercover agent when they met Doggins in a parking lot. The informant approached Doggins’s car and bought one rock of cocaine for $20. As the informant was walking away, he turned around, went back to Doggins, complained about the quality of the rock, and purchased a second rock for $20. Both transactions were caught on videotape. Shortly thereafter, the undercover agent noticed the same car at Doggins’s home. On August 16, 2007, after confirming that the rocks contained cocaine, the police obtained a search warrant for Doggins’s house. They executed the warrant the next day, discovering drugs and a collection of drug paraphernalia. Later testing showed that the drugs included 60.63 grams of crack cocaine and 14.65 grams of powder cocaine, but the initial police report indicated that there were 38.4 grams of crack cocaine and 27.069 grams of powder cocaine. II. On February 8, 2008, Doggins moved to suppress the drugs found at his house. After a hearing on April 30, 2008, the district court denied the motion, holding that the good-faith exception applied because the police were objectively reasonable in relying on the search warrant. On September 15, 2008, Doggins moved to reopen the suppression hearing, complaining for the first time that his attorney, Denise Benson, had not allowed him to testify. After hearing testimony from Benson and Doggins, the court concluded that Doggins had never asked to testify, so it denied the motion. On November 12, 2008," }, { "docid": "14222201", "title": "", "text": "reveals that Gomes was indicted in July 2009 and sentenced in March 2010 — nearly five months before the FSA was signed into law. The issue before the Court therefore was whether the FSA applied retroactively to lighten the defendant’s existing sentence. This appeal presents a different issue. Vera Rojas’s circumstances require that we determine whether the FSA applies to a defendant who had not been sentenced when the law was enacted. The government cites published opinions from the Sixth, Seventh, Eighth, and Tenth Circuits, ostensibly in support of its proposition that “[e]very circuit court to have addressed the issue has concluded that the FSA may not be applied retroactively.” Like Gomes, each of those cases involved a defendant who had been charged, convicted, and sentenced before the effective date of the FSA; those defendants were arguing for the first time on appeal that the FSA should apply retroactively to a previously imposed sentence. See United States v. Carradine, 621 F.3d 575, 577-78, 580 (6th Cir.2010) (defendant indicted in July 2005 and sentenced in January 2008); Bell, 624 F.3d at 814 (Seventh Circuit stating that “[i]f Bell were sentenced today under the FSA, his distribution of 5.69 grams of crack cocaine would be insufficient to trigger the mandatory minimum sentencing provisions”); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010) (stating that the defendant first submitted a letter requesting re-sentencing under the FSA on August 27, 2010, where the record indicates that defendant was originally sentenced in November 2009); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010) (“[The FSA] is not, however, retroactive and thus does not apply to this case. It does, on the other hand, relegate this case to a relatively short shelf-life, inasmuch as defendants being sentenced henceforth will be sentenced under a different applicable ratio.” (emphasis added)). But see United States v. Fisher, 635 F.3d 336, 340 (7th Cir.2011) (holding that the relevant date for the FSA “is the date of the underlying criminal conduct, not the date of sentencing,” but stating, “[w]e have sympathy for the two defendants here, who" } ]

[ { "docid": "7880625", "title": "", "text": "In the case before us, the IRS attached to its enforcement petition the affidavit of Agent Bessent, who attested to the IRS’ compliance with all four elements of the Powell test. In his response, Leventhal alleged that disclosure of information about his clients would violate The Florida Bar’s Rules of Professional Conduct by revealing confidential information protected under the attorney-client privilege. The Florida Bar’s Rules of Professional Conduct, however, do not prohibit Leven-thal from disclosing the information specified in the IRS summons. Leventhal therefore failed to carry his burden of proving that the summons should not be enforced. In a similar case involving a law firm, the Second Circuit recently held that, absent extraordinary circumstances, the attorney-client privilege under New York law did not preclude disclosure of information on an IRS Form 8300. See United States v. Goldberger & Dubin, P.C., 935 F.2d 501 (2d Cir.1991). In Goldberger, the court first explained that “in actions such as the instant one, which involve violations of federal law, it is the federal common law of privilege that applies.” Id. at 505 (citations omitted) (emphasis added). The court further pointed out that, even if the state law of privilege should apply, “a communication to an attorney would not be considered confidential unless it was made in the process of obtaining legal advice; and fee arrangements between attorney and client do not satisfy this requirement in the usual case.” Id. (citations omitted). Finally, the Goldberger court noted that, even if a conversation concerning fees technically might fall within the scope of the attorney-client privilege, the privilege would yield in the face of “a federal statute that implicitly precludes its application.” Id. The court identified section 60501 as just such a federal statute, remarking that Congress, in enacting section 60501, had rejected lobbying efforts to exclude the legal profession from that section’s reporting requirements. Id. at 506. We find the Second Circuit’s reasoning in Goldberger persuasive. We have held or numerous occasions that “[t]he identity of a client or matters involving the receipt of fees from a client are not normally within the [attorney-client] privilege.”" } ]

[ { "docid": "22875187", "title": "", "text": "Goldberger & Dubin, P.C., 935 F.2d 501, 503-04 (2d Cir.1991); Tornay v. United States, 840 F.2d 1424, 1429-31 (9th Cir.1988). We do the same for the reasons given in Goldberger and Tomay. 2. Fifth Amendment Ritchie next argues that compelling him to provide evidence against his clients violates his clients’ Fifth Amendment right against self-incrimination. This argument too has been soundly rejected by our sister circuits. See, e.g., Goldberger, 935 F.2d at 503. The privilege against self-incrimination is a personal privilege, see Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548 (1973), and here the client is not the one being compelled. And the attorney may not object that the client may be incriminated by the attorney’s testimony (at least not on that ground), see In re Grand Jury Proceedings (Gordon), 722 F.2d 303, 308 (6th Cir.1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984); the attorney may, of course, assert the attorney-client privilege if the requested information is actually privileged. Furthermore, the information required must be incriminating or integrally linked with behavior deemed offensive in order for the Fifth Amendment to be implicated, see United States v. Alkhafaji, 754 F.2d 641 (6th Cir.1985) (analyzing several Supreme Court decisions in this area); paying one’s attorney in cash does not fall within this category. S. Attorney-Client Privilege Ritchie argued below that disclosure of this information would violate the attorney-client privilege. He has apparently abandoned this argument on appeal, for it appears nowhere in his brief. In any event, virtually every court to consider the issue has concluded that client identity and payment of fees is not privileged information. See, e.g., In re Grand Jury Proceedings (Damore), 689 F.2d 1351, 1352 (11th Cir.1982). And on facts similar to the case at bar, the attorney-client privilege has been held not to be a barrier to enforcement of the summons. See Goldberger, 935 F.2d at 504-05; Tornay, 840 F.2d at 1426-29. A Due Process Violation Ritchie also argues that disclosure of the requested information places the criminal defense lawyer in the role of providing" }, { "docid": "7880627", "title": "", "text": "In re Grand Jury Proceedings (David R. Damore), 689 F.2d 1351, 1352 (11th Cir.1982); see also In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir.1990) (same); In re Grand Jury Investigation (Bruce Harvey), 769 F.2d 1485, 1487 (11th Cir.1985) (same). We have recognized, however, a narrow exception to this general rule where disclosure of non-privileged attorney-client communication also would reveal privileged information. In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d at 1042-43. This exception, known as the “last link” doctrine, “[i]n essence ... extends the protection of the attorney-client privilege to nonprivileged information,” thereby protecting other attorney-client communications that are privileged where “the incriminating nature of the privileged communications has created in the client a reasonable expectation that the information would be kept confidential.” Id. at 1043 (quoting Rabin v. United States, 896 F.2d 1267, 1273 (11th Cir.), vacated 896 F.2d 1283, dismissed on other grounds, 904 F.2d 1498 (1990)). The last link doctrine, however, is inapposite in the present case. By Leventhal’s own admission, the clients involved in the two cash transactions were already under indictment for the drug-related offenses cited in Part III of the two Forms 8300. Consequently, the respective prosecutors — the United States Attorney and the Florida state attorney — were aware of the clients’ identities. Moreover, the mere fact that Leventhal’s clients had sought his legal assistance obviously does not constitute an admission of guilt, which arguably would have created an expectation of confidentiality. Disclosure of the clients’ identities under Parts I or II of Form 8300, therefore, would not have revealed any privileged information. Likewise, disclosure of the nature of the transactions under Part III would not have thwarted a reasonable expectation of confidentiality on the part of Leventhal’s clients. As the Second Circuit noted in Goldberger, “Section [60501] does not preclude would-be clients from using their own funds to hire whomever they choose. To avoid disclosure under section [60501], they need only pay counsel in some other manner than with cash. The choice is theirs.” Goldberger, 935 F.2d at 504. For the reasons stated above, we VACATE" }, { "docid": "12775212", "title": "", "text": "West Point-Pepper ell, 89 Civ. 2016. To reiterate our finding at 8, a party’s knowledge of facts, from whatever source and at whatever time they became known, is not privileged. SCB, 111 F.R.D. at 83. Nor, as the underlined portion of the above quotation indicates, is the state of mind of the plaintiffs. Thus, defendant may inquire as to plaintiffs belief or understanding as to the potential of this lawsuit, because plaintiffs must disclose their thoughts and knowledge regardless of whether or not they derived from conversations with Krumme. To be clear, plaintiffs and Mr. Krumme are required to disclose their knowledge of the facts as to all relevant times as well as their state of mind with respect to this lawsuit and Krumme v. WestPoint-Pepperell, 89 Civ. 2016, but may not be asked what they said to each other during the conversations in question. Nor,, may defendants inquire as to the legal advice rendered by Mr. Krumme in those discussions. II. The Terms of the Retainer Agreements We find that the retainer agreements between plaintiffs and Mr. Krumme, Other than the information sheets, are not privileged. In this Circuit, fee arrangements are not privileged. See, e.g., In re Shargel, 742 F.2d 61, 62 (2d Cir.1984) (“[w]e have consistently held that ... fee information [is], absent special circumstances, not privileged”); United States v. Golberger & Dubin, P.C., 935 F.2d 501, 504-507 (2d Cir.1991) (holding that the privilege does not protect client identity and fee information from an IRS subpoena). Plaintiffs offer no compelling reason to depart from this well-settled rule. III. The Identities of Mr. Krumme’s Clients While defendants correctly point out that the identity and address of a client are not generally held to be confidential communications and, thus, not privileged, see Matter of Jacqueline F., 47 N.Y.2d 215, 391 N.E.2d 967, 970, 417 N.Y.S.2d 884, 887; In re Shargel, 742 F.2d 61, 62 (2d Cir.1984), “the rule in New York is not so broad as to state categorically that the privilege never attaches to a client’s identity”; Matter of Jacqueline F., 47 N.Y.2d 215, 391 N.E.2d 967, 417" }, { "docid": "23129569", "title": "", "text": "papers with affidavits if it wished to do so. Despite this invitation, AmBase chose to limit its surreply papers to legal arguments and counsel’s conclusory assertions as to the facts. In seeking to avoid the consequences of this failing, AmBase has advanced several alternative arguments. Its principal claim, articulated most explicitly at oral argument, is that in this case the discovering party bears the burden of making at least an initial showing that its adversary’s privilege claims are not well taken, and that in any event the court may review the documents in camera to determine whether its claims are well-founded. (Tr. 21-22.) This argument is not well-founded. As noted, the decisions of the Second Circuit and of the New York Court of Appeals explicitly place upon the party invoking the privilege or work-product immunity the burden of proving the facts on which the claim is based. This burden allocation stems from several sources. First, enforcement of a claim of privilege acts in derogation of the overriding goals of liberal discovery and adjudication of cases on their merits. It is for this reason that privileges are disfavored and generally to be narrowly construed. See, e.g., United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir.1991); In re Horowitz, 482 F.2d at 81-82; Priest v. Hennessy, 51 N.Y.2d at 68, 431 N.Y.S.2d at 514, 409 N.E.2d at 985; Matter of Jacqueline F, 47 N.Y.2d at 219, 417 N.Y.S.2d at 887, 391 N.E.2d at 969. Second, the party invoking the privilege is typically in sole possession of the information that will determine the validity of the claim. Since the parties’ relative • access to relevant data is usually a significant factor in allocating burdens of proof, see, e.g., Manhattan Industries, Inc. v. Sweater Bee by Banff, Ltd., 885 F.2d 1, 8 (2d Cir.1989), cert. denied, 494 U.S. 1029, 110 S.Ct. 1477, 108 L.Ed.2d 614 (1990), it is appropriate to cast upon the party seeking privilege protection the burden of proving the relevant facts. Although AmBase appears to suggest that such a requirement is unduly burdensome, especially in a large" }, { "docid": "2450599", "title": "", "text": "U.S.], 445 U.S., at 50 [, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)], (quoting Elkins v. United States, 364 U.S. 206, 234[, 80 S.Ct. 1437, 4 L.Ed.2d 1669] (1960) (Frankfurter, J., dissenting)). 518 U.S. at 9, 116 S.Ct. 1923 (parallel citations omitted). Because privileges keep relevant evidence from the fact-finder, the party making claim of an attorney-client privilege bears the burden of proving that the privilege is applicable. The privilege claimant must show not only that the privilege exists, but must also show that the privilege has not been waived. The privilege is ordinarily strictly construed. Judge Carr of this Court described the narrow application of the attorney-client privilege in United States v. Skeddle, 989 F.Supp. 890 (N.D.Ohio 1997). He wrote: The attorney-client privilege is “the oldest of the privileges for confidential communications known to the common law,” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), but “[t]he privilege cannot stand in the face of countervailing law or strong public policy and should be strictly confined within the narrowest possible limits underlying its purpose.” United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2nd Cir.1991). Thus, “while [s]ociety has every interest in assuring that legal advice is sought about how contemplated business transactions can be made to conform to the law ... [it], however, has no interest in facilitating the commission of contemplated but not yet committed crimes, torts, or frauds.” Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 251 (3rd ed.1997). Skeddle, 989 F.Supp. at 900 (parallel citations omitted). The existence of the privilege and the applicability of any exception to the privilege is a question of fact for the judge. The burden of establishing the existence of the privilege rests with the party asserting the privilege. In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir.1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). This burden extends not only to a showing of the existence of the attorney-client relationship but to all other elements involved in the determination of the existence" }, { "docid": "4583460", "title": "", "text": "such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advis- or, (8) except the protection be waived. In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1036 (2d Cir.1984); United States v. Kovel, 296 F.2d 918, 921 (2d Cir.1961). The attorney-client privilege “should be strictly confined within the narrowest possible limits underlying its purpose.” United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir.1991) (citations omitted). The party claiming the benefit of the attorney-client privilege has the burden of establishing all essential elements. von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.), cert, denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987); see, e.g., In re Horowitz, 482 F.2d 72, 82 (2d Cir.), cert, denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). The claimant’s burden cannot be “discharged by mere conclusory or ipse dixit assertions.” von Bulow, 811 F.2d at 146 (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir.1965)). “The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” Upjohn, 449 U.S. at 396, 101 S.Ct. 677; In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir.1992), cert, denied, 509 U.S. 905, 113 S.Ct. 2997,125 L.Ed.2d 691 (1993). In order to be privileged, a communication either must be from a client to an attorney or, in the case of communications from an attorney to a client, must include confidential information conveyed to the lawyer from the client. “[T]he central inquiry is whether the communication is one that was made by a client to an attorney for the purpose of obtaining legal advice or services.” Spalding, 203 F.3d at 805 (citations omitted). The request for confidential legal assistance need not be expressly stated when the request is implied. See Spalding, 203 F.3d at 806 (citing In re Sealed Case, 737 F.2d 94,102 (D.C.Cir.1984)). “Attachments which do" }, { "docid": "5776926", "title": "", "text": "as required by 26 U.S.C. § 60501, is protected from disclosure by attorney-chent privilege) with United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 505 (2d Cir.1991) (holding that the information is not protected by attorney-client privilege). In addition, service of a subpoena opens a second front which counsel must defend with her time and resources, thus diverting both from the client. That the defense counsel’s adversary can bring about these consequences raises manifest ethical concerns, properly addressed by a rule directed at regulating the attorney-to-attorney relationship. We also reject plaintiffs’ argument that Local Rule 3.8(f) contravenes the historic “secrecy” of grand jury investigations. Nothing in the text of the Rule prohibits the filing of attorney-subpoena applications to the court under seal or in camera. Nor does the Rule prohibit the court from holding an ex parte, in camera hearing. District courts routinely use in camera procedures to maintain grand jury secrecy in the context of post-service motions to quash. See R. Enterprises, Inc., 498 U.S. at 302, 111 S.Ct. at 728. Moreover, because the grounds upon which a district court may reject an attorney-subpoena application mirror those for quashing a subpoena, the prosecutor will be required to divulge no more information with respect to the grand jury’s investigation than it would in responding to a motion to quash. Finally, there is nothing in the text of Local Rule 3.8(f) which would subject the grand jury to unusual procedural delays or detours. As noted, the Rule only affects subpoenas sought by prosecutors for use at the grand jury proceeding. It is not applica ble to subpoenas sought by a grand jury acting independently. It therefore will not usually have any delaying effect on the grand jury’s investigation. Furthermore, any procedural delay or detour which does result would be minimal — presumably no greater than that caused by a traditional motion to quash a subpoena issued at the grand jury stage. As explained below, we think any minimal delay is outweighed by the benefits of the Rule. We made many of these points in Klubock I. In striking down the" }, { "docid": "22136508", "title": "", "text": "expressed apprehensions about her access to confidential informants helpful to her monitoring of the consent decree. If such informants in the present or future eases anticipate that their cooperation will likely become a matter of public knowledge, valuable cooperation might cease. However, Judge Patterson’s redactions have satisfied those concerns. Second, with regard to Meyer, Suoz-zi’s privacy interests, we note that the substance of a lawyer’s representation of a client generally involves a variety of matters about which privacy is expected. Much of that expectation, however, is based on the existence of the attorney-client privilege and work product immunity, neither of which applies—and thus have not been asserted—in the instant matter. The attorney-client privilege belongs to the client, see United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir.1991)—here the union—and the consent decree in effect waives it. Assuming that Meyer, Suozzi has a work product confidentiality interest to be asserted in its own name, see, e.g., Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 866 (3d Cir.1994), it was waived when Ickes opened his files and gave statements regarding that product to the Court Officer. Meyer, Suozzi does not claim otherwise. Moreover, the expectation of privacy is diminished where the client is a body such as a labor union or publicly held corporation, see Joy, 692 F.2d at 894, because a substantial number of citizens rely upon the representation but cannot control it. In such circumstances, the lawyer stands in a relationship to those citizens as something of a fiduciary. Some public scrutiny of the lawyer’s role may thus be expected and even called for. The nature of some parts of the Report militate against unsealing, however. Portions of the Report are hearsay, see United States v. Charmer Indus., 711 F.2d 1164, 1170-71 (2d Cir.1983), and may contain “misinformation,” see id. at 1175. “[TJhere is a strong possibility that the report will contain material which is untrustworthy or simply incorrect....” United States v. Corbitt, 879 F.2d 224, 231 (7th Cir.1989). Turning to the Report, we draw a distinction between its two parts. Part 1 involves" }, { "docid": "22875162", "title": "", "text": "ALICE M. BATCHELDER, Circuit Judge. In this case we are asked to decide whether an IRS summons issued to a lawyer and instructing that the lawyer disclose the identity of and fee arrangement with certain cash-paying clients can survive a challenge by the lawyer that such information is protected from disclosure by the Fifth and Sixth Amendments. We reluctantly answer in the affirmative. I A Facts Respondent-appellant Robert W. Ritchie practices law with Ritchie, Fels & Dillard, P.C., a Knoxville, Tennessee law firm. His practice consists primarily of criminal defense work. In the course of his practice, he occasionally receives cash payment for services rendered. In 1989 Ritchie received three cash payments over $10,000; pursuant to I.R.C. § 60501, Ritchie submitted IRS Form 8300, notifying the Internal Revenue Service of the cash payments. Ritchie, however, refused to disclose (as also required by § 60501 and Form 8800) the nature of the services rendered or the name, address, and taxpayer identification number for each of the three clients. Ritchie instead informed the IRS that such information was privileged and that he was legally and ethically bound by the attorney-client privilege, the Fifth Amendment, the Sixth Amendment, and the Tennessee Code of Professional Responsibility not to disclose it. Revenue Agent Rhonda Winter on behalf of the IRS issued a summons requiring that Ritchie produce documentary or testimonial evidence that would provide the information missing from the Forms 8300. Ritchie again refused to comply, Ritchie’s three unnamed clients filed petitions as John Doe 1, John Doe 2, and John Doe 3 to quash the summons, and Ritchie’s firm intervened on the side of its clients. The case was assigned to District Judge Jarvis, and the IRS responded to the motion to quash by filing a motion to dismiss for lack of jurisdiction, arguing that neither the Does nor the law firm could oppose the summons at that stage of the summons process. It contended that the Does and the law firm must first refuse to obey the summons, and then after the IRS brought an action to enforce the summons, they could challenge" }, { "docid": "7880626", "title": "", "text": "applies.” Id. at 505 (citations omitted) (emphasis added). The court further pointed out that, even if the state law of privilege should apply, “a communication to an attorney would not be considered confidential unless it was made in the process of obtaining legal advice; and fee arrangements between attorney and client do not satisfy this requirement in the usual case.” Id. (citations omitted). Finally, the Goldberger court noted that, even if a conversation concerning fees technically might fall within the scope of the attorney-client privilege, the privilege would yield in the face of “a federal statute that implicitly precludes its application.” Id. The court identified section 60501 as just such a federal statute, remarking that Congress, in enacting section 60501, had rejected lobbying efforts to exclude the legal profession from that section’s reporting requirements. Id. at 506. We find the Second Circuit’s reasoning in Goldberger persuasive. We have held or numerous occasions that “[t]he identity of a client or matters involving the receipt of fees from a client are not normally within the [attorney-client] privilege.” In re Grand Jury Proceedings (David R. Damore), 689 F.2d 1351, 1352 (11th Cir.1982); see also In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir.1990) (same); In re Grand Jury Investigation (Bruce Harvey), 769 F.2d 1485, 1487 (11th Cir.1985) (same). We have recognized, however, a narrow exception to this general rule where disclosure of non-privileged attorney-client communication also would reveal privileged information. In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d at 1042-43. This exception, known as the “last link” doctrine, “[i]n essence ... extends the protection of the attorney-client privilege to nonprivileged information,” thereby protecting other attorney-client communications that are privileged where “the incriminating nature of the privileged communications has created in the client a reasonable expectation that the information would be kept confidential.” Id. at 1043 (quoting Rabin v. United States, 896 F.2d 1267, 1273 (11th Cir.), vacated 896 F.2d 1283, dismissed on other grounds, 904 F.2d 1498 (1990)). The last link doctrine, however, is inapposite in the present case. By Leventhal’s own admission, the clients involved in the" }, { "docid": "5776925", "title": "", "text": "disturb the grand jury’s broad investigative powers. In effect, Local Rule 3.8(f) merely changes the timing with respect to motions to quash in recognition of the fact that service itself of an attorney-subpoena seeking to compel evidence concerning a chent may cause irreparable damage to the attorney-client relationship. See Klubock I, 832 F.2d at 653 (“The serving of a subpoena under such circumstances will immediately drive a chilling wedge between the attorney/witness and his chent.”). From the moment that the subpoena is served on counsel, until the issue of its validity is resolved, the chent resides in a state of suspended animation, not knowing whether his attorney will testify against him and perhaps be required to withdraw his representation. The uncertainty is heightened by the fact that the common law of attorney-client privilege is still evolving to address the concerns implicated by new federal laws relating to chent identity and fee arrangements. Compare United States v. Gertner, 873 F.Supp. 729 (D.Mass.1995) (in case of first impression in this circuit, holding that identification of attorney’s chent, as required by 26 U.S.C. § 60501, is protected from disclosure by attorney-chent privilege) with United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 505 (2d Cir.1991) (holding that the information is not protected by attorney-client privilege). In addition, service of a subpoena opens a second front which counsel must defend with her time and resources, thus diverting both from the client. That the defense counsel’s adversary can bring about these consequences raises manifest ethical concerns, properly addressed by a rule directed at regulating the attorney-to-attorney relationship. We also reject plaintiffs’ argument that Local Rule 3.8(f) contravenes the historic “secrecy” of grand jury investigations. Nothing in the text of the Rule prohibits the filing of attorney-subpoena applications to the court under seal or in camera. Nor does the Rule prohibit the court from holding an ex parte, in camera hearing. District courts routinely use in camera procedures to maintain grand jury secrecy in the context of post-service motions to quash. See R. Enterprises, Inc., 498 U.S. at 302, 111 S.Ct. at 728. Moreover, because" }, { "docid": "22875186", "title": "", "text": "are personal and confidential; other businesses must divulge the identity of their cash-paying clients in keeping with lawful revenue regulations and law firms should not be an exception to this rule. We therefore hold that the simple fact that these clients paid for legal services with large amounts of cash is a sufficient “reasonable basis” upon which to issue the John Doe summons. C. Constitutional Challenges to the Summons Moving now to the heart of Ritchie’s objections, Ritchie argues four separate grounds for finding' the summons unenforceable: I. Sixth Amendment Ritchie argues that divulging the requested information about his clients would violate their Sixth Amendment right to counsel because it would (1) interfere with the ability of citizens to retain counsel, (2) discourage free and open communication between client and attorney, and (3) possibly destroy the attorney-client relationship through the disqualification of counsel who is later called to testify as to the form of payment. At least two of our sister circuits have fully addressed this argument and soundly rejected it. See United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 503-04 (2d Cir.1991); Tornay v. United States, 840 F.2d 1424, 1429-31 (9th Cir.1988). We do the same for the reasons given in Goldberger and Tomay. 2. Fifth Amendment Ritchie next argues that compelling him to provide evidence against his clients violates his clients’ Fifth Amendment right against self-incrimination. This argument too has been soundly rejected by our sister circuits. See, e.g., Goldberger, 935 F.2d at 503. The privilege against self-incrimination is a personal privilege, see Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548 (1973), and here the client is not the one being compelled. And the attorney may not object that the client may be incriminated by the attorney’s testimony (at least not on that ground), see In re Grand Jury Proceedings (Gordon), 722 F.2d 303, 308 (6th Cir.1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984); the attorney may, of course, assert the attorney-client privilege if the requested information is actually privileged. Furthermore, the information required" }, { "docid": "7880628", "title": "", "text": "two cash transactions were already under indictment for the drug-related offenses cited in Part III of the two Forms 8300. Consequently, the respective prosecutors — the United States Attorney and the Florida state attorney — were aware of the clients’ identities. Moreover, the mere fact that Leventhal’s clients had sought his legal assistance obviously does not constitute an admission of guilt, which arguably would have created an expectation of confidentiality. Disclosure of the clients’ identities under Parts I or II of Form 8300, therefore, would not have revealed any privileged information. Likewise, disclosure of the nature of the transactions under Part III would not have thwarted a reasonable expectation of confidentiality on the part of Leventhal’s clients. As the Second Circuit noted in Goldberger, “Section [60501] does not preclude would-be clients from using their own funds to hire whomever they choose. To avoid disclosure under section [60501], they need only pay counsel in some other manner than with cash. The choice is theirs.” Goldberger, 935 F.2d at 504. For the reasons stated above, we VACATE the district court’s order and REMAND this case with the instruction that the district court enter an order enforcing the IRS summons in toto. IT IS SO ORDERED. . This appeal involves Robert A. Leventhal in two capacities: personally and as a partner-officer of Leventhal & Slaughter, P.A. For sim plicity, we refer to him in both capacities as Leventhal. . Parts I and II require the recipient of the cash payment to disclose all of the following facts, where applicable, pertaining to both the individual from whom the cash is received and the individual’s agent: the individual’s full name, social security number, passport number and country of issuance, and alien registration number; the organization with which the individual is affiliated; the organization’s employer identification number; the organization’s business or occupation; and an address for either the individual or organization. . Part III lists the following options for describing the nature of the transaction: personal property purchased, real property purchased, personal services provided, business services provided, intangible property purchased, debt obligation paid, exchange of cash," }, { "docid": "7880624", "title": "", "text": "information sought is not already within the [IRS’] possession,” and (4) “that the administrative steps required by the [Internal Revenue] Code have been followed.” Id. In applying the Powell test, we have held that [t]he IRS can satisfy [its] burden merely by presenting the sworn affidavit of the agent who issued the summons attesting to these facts[;] the burden [then] shifts to the party contesting the summons to disprove, one of the four elements of the government’s prima facie showing or convince the court that enforcement of the summons would constitute an abuse of the court’s process. La Mura v. United States, 765 F.2d 974, 979 (11th Cir.1985) (citations omitted); see also Liberty Financial Services v. United States, 778 F.2d 1390, 1392 (9th Cir.1985). The burden on the contesting party is “a heavy one,” United States v. Balanced Financial Management, Inc., 769 F.2d 1440, 1444 (10th Cir.1985), requiring allegation of specific facts and introduction of evidence. Liberty Financial, 778 F.2d at 1392; United States v. Samuels, Kramer & Co., 712 F.2d 1342, 1347-48 (9th Cir.1983). In the case before us, the IRS attached to its enforcement petition the affidavit of Agent Bessent, who attested to the IRS’ compliance with all four elements of the Powell test. In his response, Leventhal alleged that disclosure of information about his clients would violate The Florida Bar’s Rules of Professional Conduct by revealing confidential information protected under the attorney-client privilege. The Florida Bar’s Rules of Professional Conduct, however, do not prohibit Leven-thal from disclosing the information specified in the IRS summons. Leventhal therefore failed to carry his burden of proving that the summons should not be enforced. In a similar case involving a law firm, the Second Circuit recently held that, absent extraordinary circumstances, the attorney-client privilege under New York law did not preclude disclosure of information on an IRS Form 8300. See United States v. Goldberger & Dubin, P.C., 935 F.2d 501 (2d Cir.1991). In Goldberger, the court first explained that “in actions such as the instant one, which involve violations of federal law, it is the federal common law of privilege that" }, { "docid": "2450600", "title": "", "text": "the narrowest possible limits underlying its purpose.” United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2nd Cir.1991). Thus, “while [s]ociety has every interest in assuring that legal advice is sought about how contemplated business transactions can be made to conform to the law ... [it], however, has no interest in facilitating the commission of contemplated but not yet committed crimes, torts, or frauds.” Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 251 (3rd ed.1997). Skeddle, 989 F.Supp. at 900 (parallel citations omitted). The existence of the privilege and the applicability of any exception to the privilege is a question of fact for the judge. The burden of establishing the existence of the privilege rests with the party asserting the privilege. In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir.1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). This burden extends not only to a showing of the existence of the attorney-client relationship but to all other elements involved in the determination of the existence of the privilege. Thus, a party seeking privilege has the burden to show that (1) the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. A number of courts reviewing this issue have found that these tobacco defendants waived any privilege that may have attached to the documents at issue through their own disclosures and when settling the Minnesota litigation. This court turns to this issue. B. The Minnesota Consent Judgment Plaintiff Funds contend that the defendants waived attorney-client and work-product privilege when they entered into the Consent Judgment dated May 18, 1998, settling the Minnesota litigation. Here, the Funds argue that the defendants did not expressly preserve any right of privilege regarding the release of the documents, and therefore “voluntarily relinquished all rights regarding document disclosure.” Plaintiffs also say that the defendants agreed to allow the presiding judge," }, { "docid": "22875184", "title": "", "text": "counsel,” but this is not the case; the suspect act is paying over $10,000 in cash for anything — in this case legal services. Ritchie continues by arguing that “[a client] must also be afforded the assurance that his choice of attorney will not generate any additional government interest in him as a criminal suspect.” Again, while we agree with Ritchie’s proposition, the IRS’s investigation has nothing to do with the client’s choice of attorney; it has everything to do with how the client paid for the services of his attorney. There may be legitimate grounds for objecting to the government’s close supervision of citizens’ dealings in currency, but this is an objection to Currency Transaction Reports and the like, not an objection to the government’s requirement that a particular profession disclose which of its clients have chosen to deal in large amounts of cash. As was said in United States v. Goldberger & Dubin, P.C., 935 F.2d 501 (2d Cir.1991): Section [60501] does not preclude would-be clients from using their own funds to hire whomever they choose. To avoid disclosure under section [60501], they need only pay counsel in some other manner than with cash. The choice is theirs. None of the appellants has advanced a legitimate reason why payment other than in cash cannot be made. Id. at 504. Although a good argument can be made that citizens should have the right to pay for services in cash without inviting the eyes of Government to scrutinize their financial affairs, we have searched in vain to find support for the proposition that there is a constitutionally protected liberty interest in spending large amounts of cash without having to account for it. Cf. United States v. Bisceglia, 420 U.S. 141, 149, 95 S.Ct. 915, 920, 43 L.Ed.2d 88 (1975) (“[The IRS] has a legitimate interest in large or unusual financial transactions, especially those involving cash. The reasons for that interest are too numerous and too obvious to catalog.”). We must conclude that there is no reason to grant law firms a potential monopoly on money laundering simply because their services" }, { "docid": "22875183", "title": "", "text": "To allow such consultation to be used as the basis for creating a class of suspected tax law violators is to unduly burden the right to consult one’s attorney. For this reason we cannot approve the district court’s reliance on these two factors. As to the third factor — paying for services with large amounts of cash — Ritchie asserts an argument similar to the one we have used to reject the district court’s first two grounds: to permit the IRS to discover and target those who pay large sums of cash for legal representation would penalize the exercise of a constitutional right. But if Ritchie’s argument on this point has a certain persuasive power, it is only because he diverts our focus from the nature of the payment to the surrounding circumstance of the attorney-client relationship. Ritchie argues that “consultation with counsel cannot constitutionally be used to establish ‘reasonable basis’ for believing that the client has failed to comply with certain provisions of internal revenue law.” Ritchie describes the suspect act as “consult[ing] with counsel,” but this is not the case; the suspect act is paying over $10,000 in cash for anything — in this case legal services. Ritchie continues by arguing that “[a client] must also be afforded the assurance that his choice of attorney will not generate any additional government interest in him as a criminal suspect.” Again, while we agree with Ritchie’s proposition, the IRS’s investigation has nothing to do with the client’s choice of attorney; it has everything to do with how the client paid for the services of his attorney. There may be legitimate grounds for objecting to the government’s close supervision of citizens’ dealings in currency, but this is an objection to Currency Transaction Reports and the like, not an objection to the government’s requirement that a particular profession disclose which of its clients have chosen to deal in large amounts of cash. As was said in United States v. Goldberger & Dubin, P.C., 935 F.2d 501 (2d Cir.1991): Section [60501] does not preclude would-be clients from using their own funds to hire" }, { "docid": "12775213", "title": "", "text": "plaintiffs and Mr. Krumme, Other than the information sheets, are not privileged. In this Circuit, fee arrangements are not privileged. See, e.g., In re Shargel, 742 F.2d 61, 62 (2d Cir.1984) (“[w]e have consistently held that ... fee information [is], absent special circumstances, not privileged”); United States v. Golberger & Dubin, P.C., 935 F.2d 501, 504-507 (2d Cir.1991) (holding that the privilege does not protect client identity and fee information from an IRS subpoena). Plaintiffs offer no compelling reason to depart from this well-settled rule. III. The Identities of Mr. Krumme’s Clients While defendants correctly point out that the identity and address of a client are not generally held to be confidential communications and, thus, not privileged, see Matter of Jacqueline F., 47 N.Y.2d 215, 391 N.E.2d 967, 970, 417 N.Y.S.2d 884, 887; In re Shargel, 742 F.2d 61, 62 (2d Cir.1984), “the rule in New York is not so broad as to state categorically that the privilege never attaches to a client’s identity”; Matter of Jacqueline F., 47 N.Y.2d 215, 391 N.E.2d 967, 417 N.Y.S.2d 884, 887 (1979) (citing Matter of Kaplan, 8 N.Y.2d 214, 168 N.E.2d 660, 203 N.Y.S.2d 836, 838-39 (1960)) (refusing to hold lawyer in contempt for failure to disclose name of client because of client’s justified fear of reprisals). The Court in Matter of Jacqueline F., moreover, indicated that absent other compelling circumstances, a client’s identity need not be disclosed where the client is not a party to the pending litigation. 417 N.Y.S.2d at 887. Defendants here have not made a showing of the need for disclosure of the names of Mr. Krumme’s other clients sufficient to overcome the legitimate fear of retaliation harbored by those clients. See Hausen Aff. at 124, 126, 128 & 180-33. CONCLUSION In light of the foregoing, defendants’ motion to compel discovery is granted in part and denied in part. The parties are directed to resume discovery in a manner not inconsistent with this Order. SO ORDERED. . The discount rate upon which Krumme claimed that he relied was 5%, Allen, 945 F.2d at 42, whereas West Point intended to" }, { "docid": "4583459", "title": "", "text": "Trade, 143 F.R.D. at 520-23 (finding that claimant’s “showing adequately establishes that the communications were covered by the attorney-client privilege in American terms” so that the court need not even resort to foreign law), application of foreign privilege law in this case would require disclosure of many documents (1) that are protected from disclosure under American law and (2) that would not be discoverable under Korean law. Therefore, the court will apply its own privilege law to the Korean documents, even though the communications do not “touch base” with the United States. C. APPLYING AMERICAN LAW 1. ATTORNEY-CLIENT PRIVILEGE The attorney-client privilege is intended to encourage clients to be forthcoming and candid with their attorneys so that the attorney is sufficiently well-informed to provide sound legal advice. See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The Second Circuit has provided the following definition of the attorney-client privilege: (1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advis- or, (8) except the protection be waived. In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1036 (2d Cir.1984); United States v. Kovel, 296 F.2d 918, 921 (2d Cir.1961). The attorney-client privilege “should be strictly confined within the narrowest possible limits underlying its purpose.” United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir.1991) (citations omitted). The party claiming the benefit of the attorney-client privilege has the burden of establishing all essential elements. von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.), cert, denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987); see, e.g., In re Horowitz, 482 F.2d 72, 82 (2d Cir.), cert, denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). The claimant’s burden cannot be “discharged by mere conclusory or ipse dixit assertions.” von Bulow," }, { "docid": "799722", "title": "", "text": "agents in three of those countries. As for the requested files in the possession of the foreign patent agents, plaintiffs object principally on the basis of their assertion that these files are not in their possession or control, and possibly not in the possession or control of IGD. ANALYSIS A. Communications Between IGD and Foreign Patent Agents Plaintiffs now withhold a small quantity of documents that involve correspondence between IGD and patent agents in Norway, Germany, and Israel. Before addressing each of these groups of documents, I briefly summarize the current state of the law. Under Rule 501 of the Federal Rules of Evidence, we are required to look to federal law governing the invocation of an evidentiary privilege. See, e.g., United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 505 (2d Cir.1991). The generally accepted formulation of the attorney-client privilege in this circuit originates with Wig-more: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. 8 J. Wigmore, Evidence § 2292 at 554 (McNaughton rev. 1961), quoted in In re Grand Jury Subpoena Duces Tecum Dated September 15, 1983, 731 F.2d 1032, 1036 (2d Cir.1984); United States v. Bein, 728 F.2d 107, 112 (2d Cir.), cert. denied, 469 U.S. 837, 105 S.Ct. 135, 83 L.Ed.2d 75 (1984). Although this formulation, on its face, applies only to communications by the client to the attorney, the courts appear to hold that the same protection should extend to legal advice rendered by the attorney, at least if it might reflect or reveal the client’s confidential communications. See, e.g., Schlefer v. United States, 702 F.2d 233, 245 (D.C.Cir.1983); United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir.1980) (citing cases); P & B Marina, Ltd. Partnership v. Logrande, 136 F.R.D. 50, 53 (E.D.N.Y.1991). See also Upjohn Co. v. United States, 449" } ]

[ { "docid": "22731788", "title": "", "text": "OPINION WILLIAM A. FLETCHER, Circuit Judge. Jorge Alberto Hernandez-Mezquita, a native and citizen of El Salvador, entered the United States from Mexico .without inspection on June 15, 1985. Hernandez-Mezquita filed an asylum application on April 7, 1997. The INS then initiated removal proceedings against him on April 11, 1997. He now petitions for review of the BIA’s dismissal of his appeal from an Immigration Judge’s order denying his application for cancellation of removal under § 203(b) of the Nicaraguan Adjustment and Central American Relief Act (“NA-CARA”), on the ground that he failed to file an application for asylum by April 1, 1990. Hernandez-Mezquita contends that NACARA’s April 1, 1990 asylum-fihng deadline violates equal protection and due process. He also objects to the BIA’s failure to extend the Immigration Judge’s grant of voluntary departure. We deny his petition. I. Background On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Pub.L. No. 104-208, 110 Stat. 3009. Among other things, IIRIRA replaced “suspension of deportation” relief under old INA § 244 with “cancellation of removal” under INA § 240A(b), 8 U.S.C. § 1229b(b), for aliens placed in proceedings on or after April 1, 1997. The pre-IIRIRA suspension of deportation provision gave discretion to the Attorney General to grant relief to a deportable alien who had been physically present in the United States for a continuous period of 7 years; who had been a person of good moral character; and whose deportation would result in extreme hardship to the alien or to his immediate family member, who was a U.S. citizen or lawful permanent resident. 8 U.S.C. § 1254(a) (1994). IIRIRA’s more restrictive cancellation of removal provision requires 10 years of continuous physical presence, good moral character, no conviction for enumerated offenses, and “exceptional and extremely unusual hardship” to an immediate family member who is a U.S. citizen or lawful permanent resident. 8 U.S.C. § 1229b(b). On November 19, 1997, Congress enacted the Nicaraguan Adjustment and Central American Relief Act (“NACARA”). Section 203(b) of NACARA permits certain aliens to apply for special-rule cancellation of removal, which" } ]

[ { "docid": "22949828", "title": "", "text": "the Ninth Circuit, and the ambiguity of the conviction documents, a remand is warranted for further evidence — regarding the respondent’s conviction and whether he is removable as charged. The lack of a final disposition is reflected in the fact that the parties continued to litigate the matter. On remand, the IJ held that Valencia-Alvarez’s conviction was neither an aggravated felony nor a drug-related offense. On appeal, the BIA affirmed that the conviction was not an aggravated felony, but held that the conviction was related to a controlled substance. Third, Valencia-Alvarez’s first appeal to the BIA was not a separate action. Rather, the BIA’s August 6, 2002 opinion was the first of three BIA decisions in this single case, which is now before us. Thus, the BIA’s 2002 opinion did not bar the Service from bringing additional charges against Valencia-Alvarez because that opinion was not a final decision on the merits in a separate action. IV Prior to IIRIRA’s effective date, April 1, 1997, an alien in deportation proceedings continued to accrue time toward satisfying the seven-year residency requirement for suspension of deportation during the pen-dency of his or her immigration proceedings. Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 598 (9th Cir.2002). IIRIRA eliminated suspension of deportation and replaced it “with a similar (though somewhat more burdensome) kind of relief known as ‘cancellation of removal.’ ” Lopez-Castellanos v. Gonzales, 437 F.3d 848, 851 (9th Cir.2006). IIRIRA, however, also contained a “stop-clock” provision which provides that an alien ceases to accrue time toward the residency requirement when (A) the alien is served with a notice to appear, or (B) when the alien commits one of a number of criminal offenses. 8 U.S.C. § 1229b(d)(1). In Jimenez-Ange-les, we determined that the retroactive application of the “notice to appear” provision, § 1229b(d)(1)(A), was permissible. Id. at 602. Here, we consider the retroactive application of the “committed an offense” provision, § 1229b(d)(l)(B). The Supreme Court has noted that “[d]espite the dangers inherent in retroactive legislation, it is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect.” INS v." }, { "docid": "22671314", "title": "", "text": "OPINION McKEOWN, Circuit Judge: Jose Cruz Romero-Torres (“Romero”) appeals the denial of his application for cancellation of removal. He argues that he meets the statutory requirements for cancellation of removal set forth in 8 U.S.C. § 1229b(b)(l); specifically, Romero claims that his removal would impose an extreme hardship because his parents rely upon him for emotional and financial support. After a hearing, the Immigration Judge (“IJ”) denied his request, finding that Romero was not the primary source of his parents’ financial support based on his undisputed contribution to their welfare, that his claimed difficulties were a “common occurrence” in any departure situation, and that he failed to demonstrate that his removal would result in “exceptional and extremely unusual hardship” as required under the statute. 8 U.S.C. § 1229b(b)(l)(D). The IJ granted Romero’s request for voluntary departure. The Board of Immigration Appeals (“BIA”) adopted the IJ’s decision and dismissed the appeal. The threshold issue — and one of first impression in this circuit — is whether we have jurisdiction to review the BIA’s denial of cancellation based on a rejected claim of “exceptional and extremely unusual hardship.” Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), “no court [has] jurisdiction to review ... any judgment regarding the granting of relief’ for cancellation of removal. 8 U.S.C. § 1252(a)(2)(B). We join the other circuit that has addressed this issue and conclude that an “exceptional and extremely unusual hardship” determination is a subjective, discretionary judgment that has been carved out of our appellate jurisdiction. See Gonzalez-Oropeza v. U.S. Attorney General, 321 F.3d 1331, 1332-33 (11th Cir. Feb.2003). 1. Cancellation of Removal Under IIRI-RA Cancellation of removal is a new form of discretionary relief made available by IIR- IRA. Pub.L. No. 104-208, Div. C, § 304, 110 Stat. 3009 (1996). Under IIRIRA, deportation and exclusion were merged into the broader category of “removal proceedings.” Kalaw v. INS, 133 F.3d 1147, 1149 n. 2 (9th Cir.1997). Cancellation of removal, like suspension of deportation before it, is based on statutory predicates that must first be met; however, the ultimate decision whether to grant" }, { "docid": "10907965", "title": "", "text": "PER CURIAM. Petitioner Jesus Meraz-Reyes, a citizen of Mexico unlawfully present in the United States, conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b, or in the alternative, voluntary departure. An immigration judge denied cancellation of removal but granted voluntary departure with an alternative order of removal to Mexico. In denying cancellation of removal, the immigration judge found that the petitioner failed to establish that his removal would result in an “extraordinary and extremely unusual hardship” to his eight-year-old, United States-citizen child. 8 U.S.C. § 1229b(b)(l)(D). The petitioner appealed to the Board of Immigration Appeals (BIA), and the BIA affirmed. The petitioner now appeals to our court. He concedes that courts generally lack jurisdiction to review denials of petitions for cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)® (“Notwithstanding any other provision of law ... no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229b.”); Bropleh v. Gonzales, 428 F.3d 772, 778 (8th Cir.2005); Halabi v. Ashcroft, 316 F.3d 807, 808 (8th Cir.2003) (per curiam) (“The controlling statute expressly states that denials of discretionary relief, such as that under 8 U.S.C. § 1229b, are not subject to review by the courts.”). He nevertheless argues that our court has jurisdiction over his case under an exception to the general rule that would permit courts to review substantial constitutional challenges to the Immigration and Nationality Act or administrative proceedings under the act. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in sub-paragraph (B) ... shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.”); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 n. 1 (8th Cir.2004) (“Several circuits have suggested that courts retain jurisdiction to review discretionary decisions by immigration judges if a petitioner has demonstrated a substantial constitutional violation.”). Despite arguing in favor of such an exception, the petitioner does not identify any reviewable claim. He does not argue that the BIA failed to recognize its discretionary authority or that the" }, { "docid": "22611198", "title": "", "text": "WARDLAW, Circuit Judge. Todor Krumov Simeonov, a native and citizen of Bulgaria, petitions for review of the Board of Immigration Appeals’ (“BIA’s”) final order dismissing his appeal from the Immigration Judge’s (“IJ’s”) decision denying his request for suspension of deportation pursuant to Section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997, Title II of Pub.L. No. 105-100, 111 Stat. 2160, as amended by Pub.L. No. 105-139, 111 Stat. 2644 (“NACARA”). We have jurisdiction under former 8 U.S.C. § 1105a, and § 309(c) of the transitional rules set forth in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (1996), as amended by the Act of October 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656 (“IIRI-RA”), and we deny the petition. I The facts are undisputed. On August 6, 1990, Simeonov arrived at Miami International Airport with no documentation, seeking admission to the United States. The INS denied his admission, placed him in exclusion proceedings, and paroled him into the United States pending resolution of those proceedings. The Miami IJ denied his requests for asylum and withholding of deportation, and on October 29,1991 ordered him excluded and deported. The BIA affirmed the order and denied Simeo-nov’s subsequent motion to reopen on August 13, 1992. Nevertheless, as the government candidly admits, “for reasons that are not clear from the record, the INS did not enforce the exclusion order and Mr. Simeonov remained in the United States, moving to Seattle, Washington, working, and going to school.” On November 19, 1997, Congress passed NACARA, which amended IIRIRA’s transitional rules so that qualified aliens from Bulgaria (and other former Soviet Bloc countries) could obtain suspension of deportation under more lenient rules than IIRIRA’s standard for cancellation of removal. See IIRIRA § 309(c)(5), as amended. On September 11, 1998,' Simeonov successfully moved to reopen his case to apply for relief under NACARA and to change venue to Seattle, Washington. Thereafter, on June 11, 1999, Simeonov applied for suspension of deportation pursuant to NACARA § 203. Because he was in exclusion proceedings before IIRIRA took effect" }, { "docid": "4241977", "title": "", "text": "seek § 212(c) relief as to those charges. See INS v. St Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding retroactive application of the Act’s bar to former § 212(c) relief would have an impermissible retroactive effect on certain lawful permanent residents). The alien smuggling incident, however, occurred after IIRIRA’s enactment, so, to avoid removal based on that charge, Garcia-Jimenez had to seek cancellation of removal under 8 U.S.C. § 1229b(a). The IJ de nied cancellation of removal, and ordered Garcia-Jimenez removed to Mexico. The Board of Immigration Appeals (“BIA”) affirmed, reasoning that § 1229b(e)(6) “explicitly states that an alien is ineligible for cancellation of removal if he has been granted relief under section 212(c),” and thus “the Immigration Judge correctly found [Garcia-Jimenez] to be ineligible for cancellation of removal because he was granted relief under section 212(c) of the Act.” Garcia-Jimenez filed this timely petition for review. II. Jurisdiction The Immigration and Nationality Act ordinarily divests the court of appeals of jurisdiction to review any “final order of removal” against an alien who, like Garcia-Jimenez, has been found removable for committing a crime of moral turpitude or a controlled substance violation. 8 U.S.C. § 1252(a)(2)(C). The Act, however, states that “[n]othing [herein] ... which limits or eliminates judicial review shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.” Id. § 1252(a)(2)(D). The issue that Garcia-Jimenez raises in his petition is a question of law — whether § 1229b(c)(6) bars him from simultaneously obtaining both a waiver of deportation under § 212(c) and cancellation of removal under § 1229b(a). Therefore, we have jurisdiction to review his petition. III. The Merits Section 1229b(c)(6) provides that cancellation of removal is not available to: [a]n alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 1254(a) of this title or who has been granted relief under [§ 212(c)] of this title, as such sections were in effect before September 30,1996. Latching onto the word “previously,” Garcia-Jimenez argues that § 1229b(c)(6) does" }, { "docid": "22671323", "title": "", "text": "(1981), the Supreme Court explored the boundaries of “extreme hardship”: The crucial question in this case is what constitutes ‘extreme hardship.’ These words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute. Id. at 144, 101 S.Ct. 1027; see also Carnalla-Munoz v. INS, 627 F.2d 1004, 1006 (9th Cir.1980) (“Extreme hardship is by the express terms of the statute a discretionary determination.”). We join the Eleventh Circuit in acknowledging our limited jurisdiction with respect to the review of cancellation of removal proceedings. We lack jurisdiction to review the BIA’s discretionary determination that an alien failed to satisfy the “exceptional and extremely unusual hardship” requirement for cancellation of removal. The petition is DISMISSED. . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (''IIRIRA”) provides two forms of cancellation of removal: cancellation for aliens who are legal permanent residents, and cancellation for aliens who are not. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 n. 2 (9th Cir.2002). Because Romero is not a legal permanent resident alien, he is not eligible for relief under § 1229b(a) and must therefore satisfy the more stringent statutory requirements set forth in § 1229b(b). Id. at 1140. . As in Montero-Martinez, 277 F.3d at 1140 n. 1, this appeal presents the question of \"whether we can review decisions regarding discretionary relief by the Attorney General and his designees, which include! 1. inter alia, the IJ, the BIA, INS District Directors, and INS Regional Commissioners.” Because appellate courts usually review BIA decisions, we use the term BIA as \"shorthand for the Attorney General and his designees.” Id. . IIRIRA’s cancellation of removal provisions apply to immigration proceedings initiated after April 1, 1997. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). IIRIRA's transitional rules, adopting the suspension of deportation standard from pre-IIRIRA law, apply to cases that" }, { "docid": "22087174", "title": "", "text": "deported. The Alcarazes appeal. We grant their petition and remand to the BIA for a determination whether, in light of the various policy statements issued by the INS and EOIR, it was obligated to repaper the Alcarazes. STATUTORY SCHEME Before 1996, an alien was eligible for suspension of deportation if: (1) he or she had been physically present in the United States for a continuous period of not less than seven years immediately preceding the date an alien filed an application for suspension of deportation; (2) he or- she was a person of good moral character; and (3) deportation would result in extreme hardship to either the alien or an immediate family member who was a United States citizen or lawful permanent resident. Immigration and Nationality Act (“INA”) § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994); Ram v. INS, 243 F.3d 510, 513 (9th Cir.2001). An alien in deportation proceedings before 1996 “continued to accrue time towards satisfying the seven-year residency requirement for suspension of deportation during the pendency of the proceedings.” Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 598 (9th Cir.2002). Then in 1996 and 1997, Congress enacted two statutes that altered immigration law. Section 309 of IIRIRA replaced suspension of deportation with a new form of relief, entitled “cancellation of removal.” IIRIRA § 304(a)(3); 110 Stat. at 3009-587, INA 240A(d), 8 U.S.C. § -1229(d) (2000). To qualify for cancellation of removal under the new- statutory scheme, an alien must meet stricter eligibility requirements, including a longer period of residence (ten years) than was required under the former suspension of deportation scheme. Compare 8 U.S.C. § 1254(a)(1) (1994) with 8 U.S.C. § 1229b(b)(l) (2000). With regard to pending applications. for suspension of deportation, IIRIRA, together with the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), retroactively changed the end-date that stopped the clock for measuring the time an applicant was physically present in the United States for eligibility for suspension of deportation. The new rule changed the date the “clock stopped” from the date that an alien filed his or her application for suspension of deportation with the INS to the" }, { "docid": "19651137", "title": "", "text": "or nonstatuto-ry), ... except as provided in subpara-graph (D) ... no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245 [8 U.S.C. §§ 1182(h), 1182(h), 1229b, 1229c, or 1255].” Cancellation of removal is relief granted under the Immigration and Nationality Act’s section 240A. Section 1252(a)(2)(B)(i) “eliminates jurisdiction only over decisions by the BIA that involve the exercise of discretion .... [W]e retain jurisdiction over the BIA’s determination of ... purely legal and hence non-discretionary question[s] .... ” Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002). A hardship determination is ordinarily discretionary, and therefore unreviewable under § 1252(a)(2)(B)(i) in petitions for review of direct appeals to. the BIA, unless the petition raises a cognizable legal or constitutional question concerning that determination. We so held in Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003), stating that we lack jurisdiction “to review the BIA’s discretionary determination that an alien failed to satisfy the ‘exceptional and extremely unusual hardship’ requirement for cancellation of removal.” Id. at 892; see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (reiterating after the REAL ID Act, Pub.L. No. 109-13, Div. B, 119 Stat. 231 (2005), that “we lack jurisdiction to review the IJ’s subjective, discretionary determination that Martinez-Rosas did not demonstrate ‘exceptional and extremely unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D)”). The case before us involves the denial of a motion to reopen, however, not a BIA decision on direct appeal from an IJ, and therefore presents a distinct question. Our most detailed analysis of § 1252(a)(2)(B)(i)’s effect on our jurisdiction to review motions to reopen that im plicate discretionary determinations appears in Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir.2004). In that case, the petitioner withdrew his application for adjustment of status before the IJ, because his stepfather failed to appear at the removal hearing. He subsequently filed a motion to reopen with the IJ, accompanied by an affidavit from his stepfather explaining why he had not attended the hearing. Medina-Morales stated: [W]e conclude that § 1252(a)(2)(B)(i) does" }, { "docid": "21804239", "title": "", "text": "THOMPSON, Circuit Judge. Petitioner Juan Ramirez Matías (“Ramirez”) challenges the Board of Immigration Appeals’s (“BIA”) denial of his motion to exercise its sua sponte authority to reopen his case and grant his request for cancellation of removal. We find that even if we have jurisdiction to consider his appeal, we must still deny Ramirez’s petition. BACKGROUND Ramirez is no stranger to this court: in 2014, he petitioned for review of the BIA’s denial of his application for cancellation of removal (as well as some other forms of relief that are not relevant to this appeal). Ramirez-Matias v. Holder, 778 F.3d 322, 324 (1st Cir. 2015). Because we’ve laid out most of the relevant facts once before, here we keep it brief. Ramirez was served with a notice to appear in 2008, alleging that he was removable because he was “[a]n alien present in the United States who has not been admitted or paroled.” See 8 U.S.C. § 1182(a)(6)(A)(i). Through counsel, he conceded the point but applied for cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub. L. No. 105-100, §§ 201-204, 111 Stat. 2160, 2196-2201 (codified as amended in scattered sections of 8 U.S.C.). NACARA applicants must make a handful of showings by a preponderance of the evidence to be eligible— most relevant here is that the applicant be “a person of good moral character,” 8 C.F.R. § 1240.66(b)(3)-—and even then “the applicant must ... persuade the immigration court that he merits a favorable exercise of its discretion.” Ramirez-Matias, 778 F.3d at 325-26. Ramirez’s application was denied in 2012 after the Immigration Judge (“IJ”) found that Ramirez had not shown either. Specifically, the IJ noted that Ramirez was arrested twice: once in 1994 and once in 2006 for “very serious assaultive behavior towards the mothers of his children.” Both women testified that Ramirez did not hit them, and Ramirez himself denied the “as-saultive behavior,” claiming that the police lied and both incidents were misunderstandings. But for his part, the IJ thought it more likely that Ramirez was the one telling a lie. Ramirez appealed, but" }, { "docid": "22743202", "title": "", "text": "PER CURIAM: Daniel Sandoval-Luna petitions for review of his removal proceedings. He contends that the Immigration Judge’s denial of a continuance constitutes an abuse of discretion and violation of due process, and that the qualifying relative requirement for cancellation of removal, 8 U.S.C. § 1229b(b)(1)(D), violates his equal protection rights. The government asserts we have no jurisdiction over Sandoval-Luna’s petition. We hold that we have jurisdiction, and we deny the petition for review. BACKGROUND The former Immigration and Naturalization Service charged Daniel Sandoval-Luna with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). On December 18, 2002, Sandoval-Luna appeared with counsel before an Immigration Judge (“IJ”) and conceded his removability. The IJ granted a six-month continuance so counsel could attempt to establish that Sandoval-Luna was eligible for cancellation of removal. On June 18, 2003, Sandoval-Luna appeared for the second time before the IJ. He admitted that he was not eligible for cancellation of removal because he lacked a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D). Sandoval-Luna’s counsel asked for another continuance to allow time for the release of new regulations under the Child Status Protection Act (“CSPA”), hoping to assert that Sandoval-Luna was eligible for adjustment of status as a derivative beneficiary of his father’s labor certification application. The CSPA regulations had not been released at the time of the hearing, and the labor certification application had not been processed. The IJ denied the request for a further continuance. After the denial, the IJ entered an oral decision in which he pretermitted Sandoval-Luna’s application for cancellation of removal and granted sixty days for voluntary departure. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision without opinion. This petition for review followed. STANDARD OF REVIEW When the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision as the final agency action. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review questions concerning our jurisdiction de novo. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126 (9th Cir.2007) (citing An dersen v. United" }, { "docid": "23264566", "title": "", "text": "judge set the case for an individual hearing. At the final individual hearing on April 10, 2007, Gor, again appearing pro se, moved for cancellation of removal under section 240A of the Immigration and Nationalization Act. The IJ denied Gor’s request. On May 10, 2007, the petitioner appealed to the BIA, still proceeding pro se, challenging only the merits of the cancellation-of-removal determination. On October 5, 2007, the BIA affirmed the Immigration Judge’s decision without opinion. Gor did not file a petition for review of this decision within ninety days. On May 20, 2008, Gor had retained counsel, who moved the BIA to reopen removal proceedings sua sponte under 8 C.F.B.. § 1003.2(a). For the first time, the petitioner raised the following four arguments: (1) his Ohio state convictions of nonsupport are not removable offenses under 8 U.S.C. § 1227(a)(2)(E)(i); (2) the IJ erred when he did not provide the petitioner with a list of low-cost immigration attorneys in the area; (3) the petitioner was denied due process when the IJ proceeded with the removal hearing despite the petitioner’s inability to retain an attorney; and (4) the IJ erred when he failed to advise the petitioner of the availability of and consider discretionary relief from removal available to the petitioner. The BIA denied the motion on June 11, 2008, finding that the ease was “not an exceptional situation” since “[a]ll of the claims presented by the respondent ... could have been presented to the Board on appeal,” and the case law Gor cited came from “outside of the Sixth Circuit,” was “unpublished[,] or not directly relevant.” App’x at 9. The petitioner filed a timely petition for review of this decision, raising the four arguments presented to the BIA in his petition to reopen. As noted earlier, the government filed a motion to dismiss for lack of jurisdiction. II. Before we may consider the merits of the petitioner’s claims, we must address the question of jurisdiction. The government had moved to dismiss the petition, arguing that the underlying removal order is beyond our jurisdiction because the petitioner did not file a" }, { "docid": "22346473", "title": "", "text": "PER CURIAM: Jose Rodriguez Rueda petitions this court for review of the Board of Immigration Appeals’ (BIA) decision summarily affirming the Immigration Judge’s (IJ) order denying his application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(l). Rueda contests the merits of the IJ’s determination that he was statutorily ineligible for cancellation of removal because he failed to demonstrate the requisite hardship. Because this case involves the granting of relief under 8 U.S.C. § 1229b(b), the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)© is implicated. See Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir.2003). This provision strips us of jurisdiction over those decisions that involve the exercise of discretion. Mi-reles-Valdez v. Ashcroft, 349 F.3d 213, 216 (5th Cir.2003). The IJ’s determination under § 1229b(b)(l)(D) that Rueda’s children would not suffer an “exceptional and extremely unusual hardship” if Rueda were deported to Mexico involved the exercise of discretion. See, e.g., Mendez-Moran-chel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003) (holding that “[t]he decision whether an alien meets the hardship requirement in 8 U.S.C. § 1229b is ... a discretionary judgment”); cf. Moosa v. INS, 171 F.3d 994, 1012 (5th Cir.1999) (holding, under the predecessor to § 1229b(b), “that denials of suspension based on the ... element of ‘extreme hardship’ are discretionary decisions”). Therefore, this court lacks jurisdiction to review the IJ’s hardship determination, and Rueda’s petition is DISMISSED. See Mendez-Moranchel, 338 F.3d at 179. . As we have previously explained, the judicial review provisions codified in § 1252(a)(2) apply to removal proceedings, like Rueda’s, that commenced after April 1, 1997. See, e.g., DeLeon-Holguin v. Ashcroft, 253 F.3d 811, 813 (5th Cir.2001)." }, { "docid": "16258515", "title": "", "text": "voluntary removal if she was denied cancellation of removal. See INA § 240B(b), 8 U.S.C. § 1229c(b) (“[t]he Attorney General may permit an alien voluntarily to depart the United States ... if ... the immigration judge enters an order granting voluntary departure in lieu of removal.”) But we lack jurisdiction to review an immigration judge’s refusal to grant voluntary departure. See 8 U.S.C. § 1229c(f); Van Dinh v. Reno, 197 F.3d 427, 434 (10th Cir.1999). Consequently, we restrict our attention to Petitioner’s other claims. The IJ held several further hearings and issued an oral decision on August 19, 2002. He first decided that the 1-9 form sufficed to support the charge that Petitioner falsely represented herself to be a citizen. He said, “To the general public, there is no distinction between being a citizen and being a national,” and found Petitioner’s testimony that she had believed in such a distinction “patently unbelievable[,] ... unconvincing and false.” R. at 117-18. Accordingly, he held that Petitioner was removable under § 1227(a)(3)(D) for falsely representing herself to be a United States citizen. The IJ indicated that this conclusion made Petitioner ineligible for the statutory relief that she had requested. In any event, the IJ added that even if Petitioner were eligible for these forms of relief, he would deny her applications for them “as a matter of discretion.” R. at 123. Each of the provisions on which Petitioner relies only permits the Attorney General to grant relief; none requires that he do so. See 8 U.S.C. §§ 1229b(b)(l) (“The Attorney General may cancel removal .... ”), 1229b(b)(2) (“The Attorney General may cancel removal .... ”), 1255(a) (“The status of an alien ... may be adjusted by the Attorney General.... ”). On August 23, 2002, Petitioner appealed the IJ’s decision to the BIA. On January 15, 2004, the BIA affirmed without opinion. The IJ’s opinion thus became the final agency determination. See Yuk v. Ashcroft, 355 F.3d 1222, 1230 (10th Cir.2004) (“the summary affirmance regulations specifically provide that the IJ’s decision is the final agency action”). Petitioner timely petitioned for review in this court." }, { "docid": "22763176", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge: Petitioner Byron Barco-Sandoval, a native and citizen of Guatemala, seeks review of a decision by the Board of Immigration Appeals (“BIA”), adopting and affirming a decision by Immigration Judge (“IJ”) Michael W. Straus, denying his application for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1). See In re Barco-Sandoval, No. [ A XX XXX XXX ] (B.I.A. Jan. 4, 2006) (“BIA Dec.”), aff'g In re Barco-Sandoval, No. [ A XX XXX XXX ] (Immig. Ct. Hartford Oct. 1, 2004) (“IJ Dec.”). The IJ denied Barco-Sandoval’s application for two reasons. First, the IJ stated that Barco-Sandoval did not deserve a favorable exercise of discretion because he had been arrested twice for driving while intoxicated (“DWI”). Second, the IJ found that Barco-Sandoval had failed to demonstrate that his removal would “result in exceptional and extremely unusual hardship” to his family, 8 U.S.C. § 1229b(b)(1)(D). The BIA agreed with the IJ’s reasoning and affirmed his decision. On appeal, Barco-Sandoval contends that the IJ’s decision, and the BIA’s decision adopting it, used the incorrect standard to determine whether he had demonstrated extreme and unusual hardship, and that he was entitled to relief under both the correct standard and the allegedly incorrect standard actually used by the agency. The Government seeks dismissal of the petition, asserting that this Court lacks jurisdiction to review the agency’s discretionary and factual determinations leading to the denial of Barco-Sandoval’s application for cancellation of removal. We dismiss the petition, concluding (1) that we lack jurisdiction to review the agency’s discretionary and factual determinations underlying the denial of Barco-Sandoval’s application for cancellation of removal, and (2) that Barco-Sandoval fails to raise any colorable constitutional claims or questions of law. In reaching this conclusion, we reaffirm our holding in De La Vega v. Gonzales, 436 F.3d 141 (2d Cir.2006), that we lack jurisdiction to review “discretionary determinations concerning whether to grant cancellation of removal,” id. at 144, and we settle the question of whether De La Vega remains good law in light of our revised opinion in Xiao" }, { "docid": "22611200", "title": "", "text": "on April 1, 1997, Immigration and Naturalization Act (“INA”) § 244(a) governed Simeonov’s application for suspension of deportation. See IIRIRA § 309(c)(l)-(3). Thus, Simeonov argued under the pre-IIRIRA criteria that he had been in the United States for the requisite seven years, was of good moral character, and that deportation to Bulgaria would cause him extreme hardship. After a merits hearing, the IJ issued a written decision denying Simeonov’s application for failure to establish extreme hardship to himself. Simeonov appealed to the BIA, challenging the IJ’s hardship determination. On May 2, 2002, the BIA, relying on In re Torres, 19 I. & N. Dec. 371, 372-73 (BIA 1986), issued a per curiam order, in which it concluded that Simeonov is statutorily ineligible for suspension of deportation because he is an alien in exclusion proceedings. The BIA dismissed Simoe-nov’s appeal solely on that ground; it did not reach the merits of his claim. Simeo-nov timely filed a petition for review of the BIA’s order. II Where, as here, the BIA conducts a de novo review and issues its own decision, rather than adopting the IJ’s decision as its own, we review the BIA’s decision. See Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). We review de novo the BIA’s determination of purely legal questions regarding the Immigration and Nationality Act, giving deference to the BIA’s interpretation unless that interpretation is contrary to the plain and sensible meaning of the statute. See id. at 861-62 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We review de novo claims of due process violations in immigration proceedings. See Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir.2003). Ill A Among other things, IIRIRA eliminated the distinction between “exclusion” and “deportation” proceedings, repealed INA § 244 and the discretionary relief of suspension of deportation, and established a new form of discretionary relief called “cancellation of removal.” INA § 240A, 8 U.S.C. § 1229b. Compared to the more lenient requirements for suspension of deportation under INA § 244, IIRIRA’s cancellation" }, { "docid": "3919083", "title": "", "text": "LYNCH, Circuit Judge. This case raises a new issue of interpretation of a 1997 immigration provision, the Nicaraguan Adjustment and Central American Relief Act (NACARA) § 203(a), Pub.L. No. 105-100, 111 Stat. 2160, 2196 (1997). NACARA § 203(a) amended and clarified a provision of a major immigration statute, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546 (codified as amended in scattered sections of 5, 8, 18, 28, 42, & 48 U.S.C.). The two provisions concern the concept of an alien’s “continuous residence” and “continuous physical presence” in the United ■ States. Continuous presence and/or residence for a specified period of years are basic eligibility requirements for certain types of discretionary immigration relief, including suspension of deportation and cancellation of removal. See 8 U.S.C. § 1229b(a), (b)(1), (d). Accrual of the requisite continuous time, however, can be broken without the alien actually leaving the country. Under 8 U.S.C. § 1229b(d)(l), an alien’s presence and residence are deemed ended in two circumstances: when he or she has been served a notice to appear, id. § 1229b(d)(l)(A), or committed certain criminal offenses, id. § 1229b(d)(l)(B). These provisions are collectively known as the “stop-time rule.” The question presented concerns the temporal reach of subsection (B) of the stop-time rule, the provision relating to criminal offenses. The petitioner, Dr. Rubén Peralta, works as a trauma surgeon at the Massachusetts General Hospital in Boston. More than a decade ago, he committed a crime, marriage fraud, which an Immigration Judge (IJ) determined fell within the universe of offenses listed in subsection (B). The IJ found that subsection (B), which took effect after Dr. Peralta committed the crime and after his deportation proceedings had begun, was retroactively applicable under the transitional rules of IIRIRA. The IJ therefore found Dr. Per-alta ineligible for suspension of deportation and pretermitted his application for that relief. The Board of Immigration Appeals (BIA) affirmed. On petition for review, Dr. Peralta argues that while IIRIRA’s transitional rules may make subsection (A) retroactively applicable, they are silent as to subsection (B). He argues" }, { "docid": "22763790", "title": "", "text": "ORDER Luis Jesus Vilchiz-Soto and Obdulia Resendiz-Ledesma, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen removal proceedings and reconsider a previous denial of their application for cancellation of removal. The BIA denied the motion to reconsider because petitioners failed to demonstrate any error of fact or law in the BIA’s September 22, 2011 decision, which was based on petitioners’ failure to demonstrate “exceptional and extremely unusual hardship” to their qualifying relatives. 8 C.F.R. § 1003.2(b)(1). The BIA also denied the motion to reopen because petitioners did not demonstrate reopening would be proper under 8 C.F.R. § 1003.2(c)(1). The government contends that we lack jurisdiction to review the denial of the motion to reconsider because petitioners’ challenge is nothing more than a challenge to the BIA’s discretionary determination that petitioners failed to establish that their removal would cause the requisite hardship to their qualifying relatives. Petitioners contend that we do have jurisdiction because they are not challenging the BIA’s discretionary determinations but instead, are challenging the BIA’s denial of the reconsideration motion on the ground that the BIA applied the wrong legal standard and failed to consider petitioners’ equities in support of their claim for cancellation of removal. Under 8 U.S.C. § 1252, we have jurisdiction to review final orders of removal. See Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir.2008). However, absent a colorable legal or constitutional claim, we lack jurisdiction to review the BIA’s discretionary determination that an alien failed to prove that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1252(a)(2)(B)® (stating in relevant part that “[njotwithstanding any other provision of law, no court shall have jurisdiction to review—-any judgment regarding the granting of relief under section ... 1229b [cancellation of removal]”). See also Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003) (holding that an exceptional and extremely unusual hardship determination is a" }, { "docid": "22428599", "title": "", "text": "in the decision under review were harmless or nonmaterial; and (A) the issue on appeal is squarely controlled by existing Board or federal precedent and does not involve the application of precedent to a novel factual situation; or (B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted. 8 C.F.R. § 1003.1(a)(7)(h). Garcia argues that we must review the BIA’s use of the streamlined review process because his case does not meet any of the regulatory criteria governing this type of review. We reject this argument. Garcia does not raise a constitutional challenge to the BIA procedure. In any event, we have already held that the streamlining process is constitutional. See Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir.2003) (holding that BIA streamlining procedure does not deprive courts of judicial review and does not violate alien’s due process rights). Further, when the BIA uses the streamlining process, the underlying decision of the IJ is the decision that this Court reviews. See id. at 830. We have reviewed the IJ’s decision on a dis-positive issue and have found no error in his ruling that Garcia failed to establish ten years of continuous presence. Petitioner is entitled to no further judicial review. Y. CONCLUSION Appellant Juan Garcia-Melendez’s petition for judicial review of the BIA’s order affirming the IJ’s decision to deny Garcia’s application for cancellation of removal is DENIED. . Cancellation of removal is a form of discretionary relief passed as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRIRA”), enacted on September 30, 1996. See Pub.L. No. 104-208 (Division C), 110 Stat. 3009-546. In IIRIRA section 304, Congress eliminated INA section 212(c) relief as well as suspension of deportation, and replaced them with two forms of cancellation of removal, one for aliens who are legal permanent residents, and one for those who are not. The statutory requirements for cancellation of removal for a non-permanent resident such as Garcia are codified at section 240A(b) of the INA, 8 U.S.C. § 1229b(b). Because Garcia's removal proceedings began after April 1, 1997," }, { "docid": "22937840", "title": "", "text": "statutorily ineligible for adjustment of status under INA § 245(i) because she is inadmissible under INA § 212(a)(6)(C)® for fraudulent entry. Naseem’s derivative application thus was also properly denied. We deny the petition for review. IV. Petitioners next ask this Court to review the BIA’s discretionary decision denying cancellation of removal. Petitioners challenge on appeal only the determination that they failed to demonstrate “exceptional and extremely unusual hardship” under INA § 240A(b)(1)(D) to their United States citizen son, a factual question. 8 U.S.C. § 1229b(b)(1)(D). We lack jurisdiction to review any judgment regarding the granting or denying of discretionary relief in the form of cancellation of removal, unless the appeal involves constitutional questions or questions of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). As this appeal involves neither, we dismiss it for lack of jurisdiction. Petitioners allege no constitutionally protected liberty or property interest in obtaining discretionary relief, and we have determined that illegal aliens do not possess a constitutionally protected right to adjustment of status or eligible discretionary relief. See, e.g., Manzano-Garcia v. Gonzales, 413 F.3d 462, 471 (5th Cir.2005); Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004); see also Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir.2006). Petitioners’ claim that the IJ did not properly take into account all the hardship factors merely asks this Court to replace the IJ’s evaluation of the evidence with a new outcome, which falls squarely within the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B). See, e.g., Sung v. Keisler, 505 F.3d 372, 377 (5th Cir.2007) (“Mr. Sung’s cancellation of removal under § 1229b(b) does not involve a constitutional claim or a question of law; therefore, this court does not have jurisdiction to review [his claim that the IJ did not consider all of the relevant factors in determining his children would not suffer the requisite hardship].”). V. Finally, Petitioners ask this Court to review the BIA’s discretionary decision denying voluntary departure. But Petitioners again overlook the same jurisdictional bar to this Court’s consideration of their factual claim that the BIA abused its discretion in denying their request for voluntary departure." }, { "docid": "22742985", "title": "", "text": "CLIFTON, Circuit Judge. Francisco Vasquez-Zavala and Cristina Vasquez-Patino petition for review of a final order of removal from the Board of Immigration Appeals (“BIA”). The BIA held that because the Immigration and Naturalization Service’s charging document was not filed until after April 1, 1997 — the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), PL 104-208 Div. C, 110 Stat. 3009 (1996) — petitioners were no longer statutorily eligible for the pre-IIRIRA remedy of suspension of deportation but instead could only seek cancellation of removal under IIRIRA. Petitioners seek to distinguish their situation from the one presented to us in Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir.2002), where we held that an alien who presented herself to the INS before April 1, 1997 did not have “settled expectations” of being placed in deportation proceedings and was therefore properly in removal proceedings because the INS did not file the charging document until after April 1, 1997. Petitioners argue that because of the way they presented themselves to the INS-by filing an application for asylum before April 1, 1997 — they had “settled expectations” of being placed in deportation proceedings rather than removal proceedings, or, alternatively, that they had due process rights to the same. We disagree and deny the petition. I. Background Petitioners are natives and citizens of Mexico. Mr. Vasquez-Zavala entered the United States without inspection in January 1986 near San Ysidro, California, while his wife and co-petitioner, Ms. Vasquez Patino, entered in the same vicinity, also without inspection, in March 1980. On March 10, 1997, Petitioners filed an application for asylum with the INS. On July 8, 1997 the INS denied the asylum application and filed a Notice to Appear (“NTA”), charging Petitioners as being removable as “alien[s] present in the United States without having been admitted or paroled” under Section 212(a)(6)(A)® of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)®. On June 1, 1998, Petitioners, represented by counsel, appeared before an immigration judge (“IJ”) and conceded the allegations of fact in the NTA. Petitioners argued that they should be in deportation proceedings" } ]

[ { "docid": "22722417", "title": "", "text": "guide the . . . choice between the alternative verdicts of death and life imprisonment.” Ibid, (quoting Poland, supra, at 156 (internal quotation marks omitted)). The Court thus characterized the finding of aggravating facts falling within the traditional scope of capital sentencing as a choice between a greater and a lesser penalty, not as a process of raising the ceiling of the sentencing range available. We are frank to say that we emphasize this careful reading of Walton’s rationale because the question implicated by the Government’s position on the meaning of §2119(2) is too significant to be decided without being squarely faced. In sum, the Government’s view would raise serious constitutional questions on which precedent is not dispositive. Any doubt on the issue of statutory construction is hence to be resolved in favor of avoiding those questions. This is done by construing §2119 as establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict. The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Congress amended the statute in 1994 and 1996. In the Violent Crime Control and Law Enforcement Act of 1994, it deleted the phrase in the first paragraph concerning firearm possession and replaced it with the phrase, \"with the intent to cause death or serious bodily harm.” §60003(a)(14), 108 Stat. 1970. It also made death a possible punishment for offenses committed under subsection (3). Ibid. In the Carjacking Correction Act of 1996, Congress specified that the term “serious bodily injury” in subsection (2) includes certain sexual assaults. §2, 110 Stat. 3020. The Ninth Circuit vacated another portion of the District Court’s sentencing decision and remanded. United States v. Oliver, 60 F. 3d 547, 555-556 (1995). On remand, the District Court reduced petitioner’s carjacking sentence to 20 years and his total sentence to 25 years, and the Court of Appeals affirmed. App. 41-43; judgt. order reported at 116 F. 3d 1487 (1997)." } ]

[ { "docid": "22462173", "title": "", "text": "May 12 of the same year. Defendant subsequently filed numerous motions to dismiss the criminal charges against him on res judicata and collateral estoppel grounds. On September 21,1995, Judge Jordan denied relief on most of Defendant’s claims, but dismissed the portion of Count Four of the criminal indictment seeking forfeiture of the residence at 266 Tonawanda Trail. The next day, Defendant filed a notice of appeal pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (permitting interlocutory appeal on a double jeopardy issue in criminal cases). The criminal prosecution was stayed at Defendant’s request pending the disposition of the appeal. On October 12, 1995, the government filed a cross-appeal seeking rein statement of the portion of Count Four that was dismissed by Judge Jordan. Approximately one year later, this Court, in a published opinion, reversed Judge Jordan’s dismissal of the civil forfeiture action with prejudice. See United States v. One Tract of Real Property, 95 F.3d 422 (6th Cir.1996). In an unpublished opinion, we affirmed the denial of Defendant’s motion to dismiss on double jeopardy grounds. We also granted the government’s cross-appeal and reversed Judge Jordan’s dismissal of Count Four (the forfeiture count), remanding the case to the district court. See United States v. O’Dell, Nos. 95-6414, 95-6415, 1996 WL 515345 (6th Cir. Sept. 10, 1996). After the case was remanded, Defendant moved to dismiss on October 21, 1995, claiming a violation of the Speedy Trial Act. On November 26, 1996, the magistrate judge filed a Report and Recommendation in which he concluded that seventy-four days had run on the Speedy Trial Act clock. In so recommending, the magistrate judge noted that the government was to blame for delay in prolonging its motion to dismiss the information. The magistrate judge then recommended dismissal of all counts of the indictment with prejudice. The government filed timely objections to this Report and Recommendation. On December 13, 1996, the district court dismissed with prejudice Count Two (manufacturing marijuana) and .Count Three (use of an enclosure to manufacture and store marijuana), but retained Counts One and Four" }, { "docid": "22400508", "title": "", "text": "court sentenced Nordby to the ten-year minimum. On Nordby’s first appeal of his sentence, we held that the district court had made insufficient findings at sentencing. We vacated and remanded for resentencing. United States v. Nordby, 156 F.3d 1240, 1998 WL 476113, at *9-10 (9th Cir.1998). At resentencing on March 25, 1999, the district court again determined that Nord-by was responsible for 1000 or more marijuana plants under 21 U.S.C. § 841(b)(l)(A)(vii) and sentenced Nordby to ten years. Nordby appeals from this resentencing. APPLICATION OF APPRENDI Apprendi v. NeW Jersey is the latest in a series of cases in which the Supreme Court has expressed a heightened concern that the determination of “sentencing factors” by a judge using a preponderance-of-the-evidence standard implicates the accused’s right to due process under the Fifth Amendment and right to a jury trial under the Sixth. Thus, in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court noted these constitutional problems but avoided them by construing the enhancement provisions of 18 U.S.C. § 2119, the federal carjacking statute, to establish separate offenses that must be charged by indictment, submitted to a jury and proven beyond a reasonable doubt. Jones, 526 U.S. at 251-52, 119 S.Ct. 1215. There, the Court observed: The dissent repeatedly chides us for failing to state precisely the principle animating our view that the carjacking statute, as construed by the Government, may violate the Constitution. The preceding paragraph in the text expresses that principle plainly enough, and we restate it here: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Government’s reading of the statute rises only to the level of doubt, not certainty. Id. at 243 n. 6, 119 S.Ct. 1215 (internal citation omitted). Jones turned ultimately on a" }, { "docid": "77323", "title": "", "text": "OPINION KENNEDY, Circuit Judge. The United States appeals the District Court’s dismissal with prejudice under the Speedy Trial Act (hereinafter “STA”), 18 U.S.C. §§ 3161-3174, of two counts of a four-count indictment against defendant Jackson C. O’Dell III (hereinafter “O’Dell”). The District Court held that ninety-three days of nonexcludable delay had elapsed, exceeding the STA’s seventy day-limit. Sixty-three of those days elapsed during proceedings on a prior information filed against O’Dell in 1993. Because a not guilty plea was never entered as required by the STA’s plain language, we hold that the District Court improperly included those sixty-three days in its calculation of nonexcludable delay After these sixty-three days are removed, fewer than seventy days of nonexcludable delay remain. Thus, the STA was not violated and we REVERSE the District Court’s dismissal of the two counts against O’Dell and REMAND for further proceedings consistent with this opinion. I. Facts and Procedural History In a search of O’Dell’s farm in 1991, the United States found an indoor marijuana growing operation consisting of plants in various stages of development, additional harvested plants, seeds, and a sawed-off shotgun. A search of O’Dell’s residence revealed documents linking O’Dell to the farm, a scale, a copy of High Times magazine, and thirty-five weapons. The United States also implicated O’Dell’s father and sons in the marijuana manufacturing operation. . On August 19,1991, the United States filed civil forfeiture actions against O’Dell’s farm and residence. At approximately the same time, the United States and O’Dell began negotiations to resolve O’Dell’s criminal liability. Lengthy plea negotiations appeared to succeed. On July 30, 1993, O’Dell waived his right to an indictment and consented to the entry of a one-count information charging him with manufacturing marijuana (hereinafter the “1993 case”). On November 8, 1993, O’Dell entered into a written plea agreement with the government, was arraigned, and entered a guilty plea to the one-count information charging him with the manufacture of marijuana. Among other things, the plea agreement required that O’Dell’s father and sons enter guilty pleas in state court to state charges related to their roles in the marijuana" }, { "docid": "22462174", "title": "", "text": "Defendant’s motion to dismiss on double jeopardy grounds. We also granted the government’s cross-appeal and reversed Judge Jordan’s dismissal of Count Four (the forfeiture count), remanding the case to the district court. See United States v. O’Dell, Nos. 95-6414, 95-6415, 1996 WL 515345 (6th Cir. Sept. 10, 1996). After the case was remanded, Defendant moved to dismiss on October 21, 1995, claiming a violation of the Speedy Trial Act. On November 26, 1996, the magistrate judge filed a Report and Recommendation in which he concluded that seventy-four days had run on the Speedy Trial Act clock. In so recommending, the magistrate judge noted that the government was to blame for delay in prolonging its motion to dismiss the information. The magistrate judge then recommended dismissal of all counts of the indictment with prejudice. The government filed timely objections to this Report and Recommendation. On December 13, 1996, the district court dismissed with prejudice Count Two (manufacturing marijuana) and .Count Three (use of an enclosure to manufacture and store marijuana), but retained Counts One and Four of the indictment. That same day, Defendant filed a notice of interlocutory appeal and the government filed its own notice of appeal. Again, upon motion of Defendant, trial was stayed pending disposition of the appeal. On August 31, 1998, this Court dismissed Defendant’s appeal but granted the relief sought by the government’s appeal, reversing the district court’s dismissal of Counts Two and Three on Speedy Trial Act grounds. See United States v. O’Dell, 154 F.3d 358 (6th Cir.1998), cert. denied, 526 U.S. 1029, 119 S.Ct. 1275, 143 L.Ed.2d 369 (1999). The case was then remanded for trial. On September 14, 1998, although the Court of Appeals mandate had not yet been issued, Defendant filed a motion to dismiss the indictment, claiming his Sixth Amendment right to a speedy trial had been violated. On the same day, Defendant filed his first speedy trial motion. But despite his assertion that he wanted a speedy trial, Defendant also petitioned the Court for a rehearing en banc, which was objected to by the government and subsequently denied by this" }, { "docid": "3762364", "title": "", "text": "property to manufacture marijuana, in violation of 21 U.S.C. § 856, and that O’Dell must forfeit the property pursuant to 21 U.S.C. §§ 841(a)(1) and 856. On January 3, 1995, O’Dell was arraigned. O’Dell then filed dozens of motions raising numerous issues. O’Dell appealed the denial of some of the motions, and the government cross-appealed when some of the motions resulted in the district court dismissing portions of the indictment. See United States v. One Tract of Real Prop., 95 F.3d 422 (6th Cir.1996) (reversing dismissal of forfeiture count with prejudice); United States v. O’Dell (O’Dell I), Nos. 95-6414 and 95-6415, 1996 WL 515345 (6th Cir. Sept.10, 1996) (affirming district court’s denial of O’Dell’s motion to dismiss on double jeopardy grounds and reinstating forfeiture count) (unpublished); United States v. O’Dell (O’Dell II), Nos. 96-6737 and 97-5098 (6th Cir. Dec. 8, 1997) (unpublished order) (dismissing several of O’Dell’s other appeals); O’Dell III, 154 F.3d 358 (reinstating counts dismissed under the Speedy Trial Act). O’Dell’s case went to trial on March 3, 1999. O’Dell waived his right to a jury trial and tried his case before the district judge. The district court took the matter under advisement. On March 24, 1999, the Supreme Court decided Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Jones construed the federal carjacking statute, 18 U.S.C. § 2119, which has three subcategories with punishments that increase based on aggravating factors. The Court interpreted § 2119 as “establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proved beyond a reasonable doubt, and submitted to the jury for its verdict.” Id. at 252, 119 S.Ct. 1215. In so holding, the Court explained that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment,' any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n. 6, 119 S.Ct. 1215. The court ultimately" }, { "docid": "6964864", "title": "", "text": "at trial, to make the necessary findings about drug quantity and prior conviction. This was the procedure the district court followed in Webb’s case. In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court considered the statute that makes carjacking a federal crime, 18 U.S.C. § 2119. That statute has a tripartite structure, with a base penalty of imprisonment for a maximum of 15 years, and greater penalties dependent upon whether the offense involved the injury or death of a victim. The Court suggested that it could well be unconstitutional for Congress to remove those latter determinations from a jury’s consideration, pursuant to the principle that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215. To avoid doubt about the constitutionality of § 2119, the Court construed the statute “as establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” Id. at 252, 119 S.Ct. 1215. The next Term, the Supreme Court decided Apprendi v. New Jersey. Confirming what the Court said it had “foreshadowed” in Jones, Apprendi held that due process requires that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond' the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 476, 490, 120 S.Ct. 2348. Such a fact, the Court said, was the “functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.”. Id. at 494 n. 19, 120 S.Ct. 2348. In Apprendi the defendant had pled guilty to a state firearms charge that exposed him to a sentencing range of" }, { "docid": "3762365", "title": "", "text": "to a jury trial and tried his case before the district judge. The district court took the matter under advisement. On March 24, 1999, the Supreme Court decided Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Jones construed the federal carjacking statute, 18 U.S.C. § 2119, which has three subcategories with punishments that increase based on aggravating factors. The Court interpreted § 2119 as “establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proved beyond a reasonable doubt, and submitted to the jury for its verdict.” Id. at 252, 119 S.Ct. 1215. In so holding, the Court explained that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment,' any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n. 6, 119 S.Ct. 1215. The court ultimately found O’Dell guilty of counts one and two. The Probation Office prepared a second presentence report stating that, unless the so-called “safety valve” sentencing statute applied, O’Dell would receive a five-year mandatory minimum term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B). O’Dell objected to the presentence report, arguing that § 841(b)(1)(B) did not apply because he qualified for the safety valve. On July 29, 1999, the court accepted O’Dell’s position and applied the safety valve. O’Dell thus received an eighteen-month sentence. The government appealed. See United States v. O’Dell (O’Dell IV), 247 F.3d 655 (6th Cir.2001). Before this Court, the government argued, inter alia, that the safety valve did not apply, making the statutory mandatory minimum inappropriate. The United States also claimed, alternatively, that O’Dell should have received twenty-four months. O’Dell argued that he met his burden of establishing that the safety valve applied. On June 26, 2000, the Supreme Court filed its opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). During the pendency of the" }, { "docid": "77325", "title": "", "text": "manufacturing operation. When they did not enter those pleas, the United States filed a notice with the District Court informing it that the terms of the plea agreement had been breached and the agreement no longer bound the government. In response, O’Dell argued that the District Court should enforce the plea agreement. After the District Court held that it could not enforce the plea agreement against the government, O’Dell moved for reconsideration, or in the alternative, to withdraw his guilty plea. On August 11, 1994, the District Court entered an order denying O’Dell’s motion for reconsideration, withdrawing O’Dell’s guilty plea, and setting the case for trial to begin on October 20, 1994. At this point, the only charging instrument before the' court was the one-count information. On October 13, 1994, O’Dell filed motions with the District Court concerning the imminent trial. On October 17,1994, the United States filed a motion to dismiss the- information; the District Court granted the motion to dismiss the 1993 case without prejudice on October 25,1994. On December 6, 1994, a grand jury returned a four-count indictment against O’Dell based on the same alleged marijuana manufacturing operation as in the 1993 case (hereinafter the “1994 case”). The first three counts charged O’Dell with (1) possessing marijuana with intent to distribute, (2) manu- factoring marijuana, and (3) providing an enclosure for the purpose of unlawfully manufacturing and storing marijuana. Count Four sought forfeiture of properties used in drug-trafficking activities pursuant to 21 U.S.C. §' 853. O’Dell was arraigned and entered a not guilty plea to the four-count indictment on January 3,1995. Pretrial discovery, motions, and an interlocutory appeal occupied the next twenty-plus months. On October 21, 1996, the defendant moved to dismiss the four counts against him based on the STA. After the Magistrate Judge recommended dismissal with prejudice of all four counts for violation of the STA, the District Court held that ninety-three days of nonexcludable delay elapsed with respect to Counts Two (manufacturing marijuana) and Three (providing an enclosure for the purpose of unlawfully manufacturing and storing marijuana) and dismissed Counts Two and Three with" }, { "docid": "16373920", "title": "", "text": "his constitutional claims on the Court finding that 1) the FDPA’s mens rea and aggravating factors are not mere sentencing factors but are instead “elements” which must be charged by a grand jury, tried before a jury, and proven beyond a reasonable doubt; 2) the FDPA does not allow for these factors to be charged by a grand jury or proven to a jury beyond a reasonable doubt using evidence which comports with the Fifth and Sixth Amendments; and 3) constitutional deficiencies in the FDPA cannot be addressed through judicial reconstruction of the statute. A. Essential Elements Versus Sentencing Factors 1. Recent Supreme Court Decisions Defining Essential Elements In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court addressed whether the federal carjacking statute, 18 U.S.C. § 2119, “defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict.” Jones, 526 U.S. at 229, 119 S.Ct. 1215. Although acknowledging that the statute was susceptible of either construction, the Court held that § 2119 established three separate offenses, each of which must be found by a jury beyond a reasonable doubt, because to hold otherwise would lead to “grave and doubtful constitutional questions” about the statute’s constitutionality. Id. at 239, 251-52, 119 S.Ct. 1215. The Court explained that “[ujnder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the defendant was convicted of, inter alia, second-degree possession of a firearm carrying a maximum ten-year sentence under New Jersey law. Apprendi, 530 U.S. at 469-70, 120 S.Ct. 2348. The sentencing judge then found, by a preponderance of the evidence," }, { "docid": "12534474", "title": "", "text": "court’s jury instructions created a material variance between the indictment and the offense proved. Accordingly, we affirm. I. Is Drug Quantity an Element of the Crime? Sheppard was convicted of conspiring to violate 21 U.S.C. § 841(a)(1), which makes it unlawful to possess with intent to distribute any quantity of a controlled substance such as methamphetamine. Sheppard was sentenced in accordance with § 841(b), which is entitled “Penalties” and which provides for increased sentencing ranges based upon a variety of factors, including the type and quantity of illegal drugs involved in the offense. Because of this statutory structure, which separates the definition of “unlawful acts” in § 841(a) from the penalty factors in § 841(b), this court (and most circuits) have held that drug quantity, even if alleged in the indictment, is not an element of the offense and is therefore determined at sentencing by the district court applying the preponderance-of-the-evidence standard, not by the jury applying the beyond-a-reasonable-doubt standard. See, e.g., United States v. Mabry, 3 F.3d 244, 250 (8th Cir.1993), cert. denied, 511 U.S. 1020, 114 S.Ct. 1403, 128 L.Ed.2d 75 (1994). In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1228, 143 L.Ed.2d 311 (1999), the Supreme Court construed the federal carjacking statute, 18 U.S.C. § 2119, “as establishing three separate offenses by the specification of distinct [penalty] elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” The Court highlighted, but did not resolve, what it called a grave and doubtful constitutional question, namely— under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. 119 S.Ct. at 1224 n. 6. Sheppard argues that Jones overruled our prior decisions holding that drug quantity is an element of sentencing under 21 U.S.C. § 841, not an element of the offense. The district court rejected" }, { "docid": "4462591", "title": "", "text": "in Apprendi indicates that existing law did not compel the rule announced therein. O’Dell, 521 U.S. at 159, 117 S.Ct. 1969 (“The array of views expressed in Simmons itself suggests the rule announced there was, in light of this court’s precedent, ‘susceptible to debate among reasonable minds.’ ”). Specifically, five justices joined in the opinion of the court, and two of those — Thomas and Scalia — issued concurring opinions, Thomas arguing for an even broader rule than that adopted by the majority. Four justices dissented in two opinions. Although Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), articulated the principle that any fact that increases the maximum penalty for a crime must be charged in the indictment and submitted to the jury — and in that sense can be said to prefigure Apprendi — the Supreme Court has clearly held that a rule can still be new even if a prior decision informs, controls, or governs the case that announces the rule. Sawyer, 497 U.S. at 236, 110 S.Ct. 2822; see Michigan v. Payne, 412 U.S. 47, 56 n. 12, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973). To prevent a rule from being considered “new,” prior case law must actually compel the result, which was not the case here. The Supreme Court noted in Jones that its “prior cases suggest rather than establish” the principle that any fact that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. 526 U.S. at 243 n. 6, 119 S.Ct. 1215. Also, before Apprendi, numerous courts had held that the amount of drugs was not an element of the offense to be submitted to the jury under 21 U.S.C. § 841, but instead was a sentencing factor under the statute’s penalty provisions. United States v. Cisneros, 112 F.3d 1272 (5th Cir.1997); United States v. Dorlouis, 107 F.3d 248 (4th Cir.1997); United States v. Silvers, 84 F.3d 1317 (10th Cir.1996); United States v. Moreno, 899 F.2d 465 (6th Cir.1990); United States" }, { "docid": "3762379", "title": "", "text": "argument), overruled on other grounds by United States v. Leachman, 309 F.3d 377 (6th Cir.2002). Furthermore, Fed. R.App. P. 28(j) states that “[i]f pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations.” In fact, this Court issued one of its major Apprendi decisions, United States v. Ramirez, 242 F.3d 348 (6th Cir.2001), overruled by United States v. Leachman, 309 F.3d 377, on February 16, 2001, months before publishing the O’Dell IV opinion. O’Dell had ample opportunity to make his Apprendi argument before this Court decided O’Dell IV. CONCLUSION The district court properly construed this Court’s decision in O’Dell IV as a limited order rather than a general order. We therefore AFFIRM. . O'Dell argued in his brief that the trial court lacked jurisdiction over the case because of an alleged defect in the indictment. . The Supreme Court decided Jones even earlier, on March 24, 1999. See Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). . This is the version of Rule 28(j) that became effective on December 1, 2002. The only difference between the new version of Rule 28(j) and the version effective at the times relevant to this case is that the old version prohibited parties from including ''argument” about the supplemental authorities in their submissions. DAVID A. NELSON, Circuit Judge, concurring. I agree that the remand in O’Dell IV was limited rather than general. I write separately, however, to note that were it to be held that the remand was general rather than limited, it would make no difference to the result in this case. The motions that Mr. O’Dell filed in the district court on the day of his sentencing — pleadings styled “Defendant’s Motion for Downward Departure” and “Motion to Resen-tence Within Constitutional Protections of Fifth Amendment Due Process and Eighth Amendment Protections” — could not properly have been granted in any event. As to the" }, { "docid": "16853139", "title": "", "text": "3593(c)-(e). However, the Federal Death Penalty Act does not define a role for the grand jury in determining what state of mind or aggravating factors may be considered at trial. Rather, § 3593(a) provides that the Department of Justice may determine whether to seek the death penalty. If the government decides to do so, the statute also requires that the attorney for the government give notice that it will seek the death penalty and set forth the aggravating factors it proposes to prove to obtain the imposition of the ultimate sanction. See 18 U.S.C. § 3593(a). This procedure was constitutional under Walton because the Supreme Court had in effect decided that the facts that raised the maximum sentence from a term of imprisonment to death were sentencing factors rather than elements of the offense, which the Fifth Amendment requires be charged by the grand jury in an indictment. See Walton, 497 U.S. at 647-49, 110 S.Ct. 3047; Jones v. United States, 526 U.S. 227, 251, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Ring, 122 S.Ct. at 2439. In 1999, however, the Supreme Court decided Jones. In Jones, the Court held that the carjacking statute involved in this case, 18 U.S.C. § 2119, creates three separate offenses. See Jones, 526 U.S. at 251-52, 119 S.Ct. 1215. Section 2119(3) requires causing serious bodily injury or death to raise the maximum possible punishment to death. Therefore, those facts were deemed elements of a greater offense that had to be found by a jury beyond a reasonable doubt rather than by a judge. Id. The Supreme Court expressly explained the basis for its decision, stating that: [Ujnder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Id. at 243 n. 6, 119 S.Ct. 1215. The Court also made clear in that footnote that it was not restricting the ability of legislators to define the" }, { "docid": "262181", "title": "", "text": "product privilege grounds, which are not constitutional privileges, we need not determine the effect of the government’s invocation of executive privilege. In addition, we note that a court should not draw adverse inferences from the failure to respond to an admissions request if the work product privilege protects the information sought. See 2 Wigmore on EvidenCe § 291 (Chadbourn rev.1979). C. Claimant’s Motion for Sanctions Claimant seeks sanctions against AUSA Cook on the grounds that (1) AUSA Cook engaged in misconduct in handling the criminal case against claimant; (2) AUSA Cook filed a frivolous appeal of the District Court’s order dismissing the civil forfeiture action with prejudice; and (8) the brief filed by AUSA Cook in this appeal contains misrepresentations and thus constitutes a fraud upon the court. We find no merit in claimant’s arguments that we should sanction AUSA Cook. We therefore deny the request for sanctions. III. For the foregoing reasons, we AFFIRM the District Court’s denial of claimant’s motion to compel, we VACATE the judgment dismissing the complaint with prejudice, and REMAND the action to the District Court to permit plaintiff to withdraw its motion to dismiss. . The government filed a separate civil forfeiture action against the farm. The District Court later dismissed that action without prejudice. . AUSA Cook represented the United States on appeal. .The indictment also charged claimant with one count of possession of marijuana with intent to distribute, one count of manufacturing marijuana, and one count of making a building available for the manufacture of marijuana. The criminal forfeiture count also sought to forfeit claimant’s interest in the farm property. . Claimant subsequently asserted in the criminal proceeding that the dismissal with prejudice of the civil forfeiture action required dismissal of the indictment on double jeopardy, res judicata, and collateral estoppel grounds. See United States v. O’Dell, No. 3-94-164 (E.D.Tenn. Sept. 21, 1995), appeal docketed, Nos. 95-6414/6415 (6th Cir. Oct. 30, 1995). . Rule 41(a)(1) provides for dismissal by the plaintiff without an order of the court under certain conditions, such as in the absence of a motion for summary judgment by" }, { "docid": "77326", "title": "", "text": "grand jury returned a four-count indictment against O’Dell based on the same alleged marijuana manufacturing operation as in the 1993 case (hereinafter the “1994 case”). The first three counts charged O’Dell with (1) possessing marijuana with intent to distribute, (2) manu- factoring marijuana, and (3) providing an enclosure for the purpose of unlawfully manufacturing and storing marijuana. Count Four sought forfeiture of properties used in drug-trafficking activities pursuant to 21 U.S.C. §' 853. O’Dell was arraigned and entered a not guilty plea to the four-count indictment on January 3,1995. Pretrial discovery, motions, and an interlocutory appeal occupied the next twenty-plus months. On October 21, 1996, the defendant moved to dismiss the four counts against him based on the STA. After the Magistrate Judge recommended dismissal with prejudice of all four counts for violation of the STA, the District Court held that ninety-three days of nonexcludable delay elapsed with respect to Counts Two (manufacturing marijuana) and Three (providing an enclosure for the purpose of unlawfully manufacturing and storing marijuana) and dismissed Counts Two and Three with prejudice. ■ The District Court found that sixty-three of those days elapsed during proceedings in the 1993 case; the remaining thirty days elapsed during the 1994 case. The United States appealed the dismissal of Counts Two and Three. II. Discussion We review the District Court’s legal interpretation of the STA de novo and the factual, findings supporting its ruling for clear error. See United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir.1994). We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3731, which provides that the government may appeal the dismissal of all or part of an indictment. The STA “requires dismissal of a criminal case, with or without prejudice, if the defendant is not tried seventy days after his indictment or the date he first appears in court, whichever date last occurs.” United States v. Jenkins, 92 F.3d 430, 438 (6th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1436, 137 L.Ed.2d 543 (1997). The seventy-day deadline is not absolute; 18 U.S.C. § 3161(h) excludes certain periods of delay from the" }, { "docid": "22462175", "title": "", "text": "of the indictment. That same day, Defendant filed a notice of interlocutory appeal and the government filed its own notice of appeal. Again, upon motion of Defendant, trial was stayed pending disposition of the appeal. On August 31, 1998, this Court dismissed Defendant’s appeal but granted the relief sought by the government’s appeal, reversing the district court’s dismissal of Counts Two and Three on Speedy Trial Act grounds. See United States v. O’Dell, 154 F.3d 358 (6th Cir.1998), cert. denied, 526 U.S. 1029, 119 S.Ct. 1275, 143 L.Ed.2d 369 (1999). The case was then remanded for trial. On September 14, 1998, although the Court of Appeals mandate had not yet been issued, Defendant filed a motion to dismiss the indictment, claiming his Sixth Amendment right to a speedy trial had been violated. On the same day, Defendant filed his first speedy trial motion. But despite his assertion that he wanted a speedy trial, Defendant also petitioned the Court for a rehearing en banc, which was objected to by the government and subsequently denied by this Court. On November 13, 1998, three days after the district court regained jurisdiction, the government filed a Motion for Ruling on all Pending Motions and for Expedited Trial Date. The government’s motion was granted and a trial date of February 16, 1999 was set. On December 9, 1998, the magistrate judge filed a Report and Recommendation recommending that Defendant’s Sixth Amendment speedy trial claim be denied. On February 4, 1999, Defendant filed a conditional motion for continu- anee of trial, suggesting a trial date in early April. Over the government’s objection, the district court granted the motion, but delayed the trial only until March 3, 1999. On February 23, 1999, the district court adopted the report of the magistrate judge recommending that Defendant’s Sixth Amendment speedy trial claim be dismissed. On the morning of trial, Defendant waived his right to a jury trial and the case was tried before Judge Jordan. At trial, Defendant did not contest his guilt on Counts One (possession of marijuana with intent to distribute) or Two (manufacturing marijuana). But Defendant" }, { "docid": "77327", "title": "", "text": "prejudice. ■ The District Court found that sixty-three of those days elapsed during proceedings in the 1993 case; the remaining thirty days elapsed during the 1994 case. The United States appealed the dismissal of Counts Two and Three. II. Discussion We review the District Court’s legal interpretation of the STA de novo and the factual, findings supporting its ruling for clear error. See United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir.1994). We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3731, which provides that the government may appeal the dismissal of all or part of an indictment. The STA “requires dismissal of a criminal case, with or without prejudice, if the defendant is not tried seventy days after his indictment or the date he first appears in court, whichever date last occurs.” United States v. Jenkins, 92 F.3d 430, 438 (6th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1436, 137 L.Ed.2d 543 (1997). The seventy-day deadline is not absolute; 18 U.S.C. § 3161(h) excludes certain periods of delay from the seventy-day calculation. See, e.g., United States v. Mentz, 840 F.2d 315, 325 (6th Cir.1988). The District Court held that sixty-three days ran off of O’Dell’s STA clock during the 1993 case after O’Dell withdrew his guilty plea. The District Court carried those sixty-three days from the 1993 case over to the current case against O’Dell pursuant to 18 U.S.C. § 3161(h)(6). The government argues that because a not guilty plea was never entered during the 1993 case, the STA was not triggered and no time ran off O’Dell’s STA clock during the 1993 case. The plain meaning of the language of the STA requires a not guilty plea to begin the clock running. Section 3161(c)(1) provides: In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of" }, { "docid": "3762363", "title": "", "text": "the defendant’s sons from applying for or obtaining a judicial diversion and their obtaining such diversion will not affect this plea agreement.” Id. at 662. When O’Dell’s father and sons refused to plead to the state charges, the government reported the breach to the district court and indicated that it was no longer bound to abide by the plea agree ment, although the government did not actually seek to withdraw its assent. Id. The court, however, declined to enforce the plea agreement and ordered the parties to proceed to trial. Id. On December 6, 1994, the government charged O’Dell in a four-count indictment. Count one charged O’Dell with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Like the earlier information, the indictment contained a reference to the applicable penalty provision, 21 U.S.C. § 841(b)(1)(B). In count two, O’Dell was charged with manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). This count also cited the penalty provision of 21 U.S.C. § 841(b)(1)(B). Counts three and four alleged O’Dell used property to manufacture marijuana, in violation of 21 U.S.C. § 856, and that O’Dell must forfeit the property pursuant to 21 U.S.C. §§ 841(a)(1) and 856. On January 3, 1995, O’Dell was arraigned. O’Dell then filed dozens of motions raising numerous issues. O’Dell appealed the denial of some of the motions, and the government cross-appealed when some of the motions resulted in the district court dismissing portions of the indictment. See United States v. One Tract of Real Prop., 95 F.3d 422 (6th Cir.1996) (reversing dismissal of forfeiture count with prejudice); United States v. O’Dell (O’Dell I), Nos. 95-6414 and 95-6415, 1996 WL 515345 (6th Cir. Sept.10, 1996) (affirming district court’s denial of O’Dell’s motion to dismiss on double jeopardy grounds and reinstating forfeiture count) (unpublished); United States v. O’Dell (O’Dell II), Nos. 96-6737 and 97-5098 (6th Cir. Dec. 8, 1997) (unpublished order) (dismissing several of O’Dell’s other appeals); O’Dell III, 154 F.3d 358 (reinstating counts dismissed under the Speedy Trial Act). O’Dell’s case went to trial on March 3, 1999. O’Dell waived his right" }, { "docid": "262182", "title": "", "text": "the action to the District Court to permit plaintiff to withdraw its motion to dismiss. . The government filed a separate civil forfeiture action against the farm. The District Court later dismissed that action without prejudice. . AUSA Cook represented the United States on appeal. .The indictment also charged claimant with one count of possession of marijuana with intent to distribute, one count of manufacturing marijuana, and one count of making a building available for the manufacture of marijuana. The criminal forfeiture count also sought to forfeit claimant’s interest in the farm property. . Claimant subsequently asserted in the criminal proceeding that the dismissal with prejudice of the civil forfeiture action required dismissal of the indictment on double jeopardy, res judicata, and collateral estoppel grounds. See United States v. O’Dell, No. 3-94-164 (E.D.Tenn. Sept. 21, 1995), appeal docketed, Nos. 95-6414/6415 (6th Cir. Oct. 30, 1995). . Rule 41(a)(1) provides for dismissal by the plaintiff without an order of the court under certain conditions, such as in the absence of a motion for summary judgment by the adverse party. Although the government’s motion sought dismissal pursuant to Rule 41(a) without specifying the subdivision, such a motion had to be pursuant to Rule 41(a)(2) because claimant had filed a motion for partial summary judgment. . In an unpublished decision, the First Circuit stated that it agrees with the Gravatt and Andes courts that if a district court intends to deny a plaintiff’s motion to dismiss, the plaintiff \"ordinarily should be given the opportunity to allow the case to proceed on the merits, rather than be subject to a dismissal with prejudice.” De Fontanez v. Jefferson Pilot Life Ins. Co., No. 93-2268, 1994 WL 424096 (1st Cir. Aug. 15, 1994). . Citing GAF Corp. v. Transamerica Ins. Co., 665 F.2d 364, 368-69 (D.C.Cir.1981), claimant asserts that the District Court did not have to provide the government with an opportunity to withdraw its motion because the government most likely would not have withdrawn given the uncertain state of double jeopardy law at the time, see, e.g., United States v. Ursery, 59 F.3d 568 (6th" }, { "docid": "12534475", "title": "", "text": "U.S. 1020, 114 S.Ct. 1403, 128 L.Ed.2d 75 (1994). In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1228, 143 L.Ed.2d 311 (1999), the Supreme Court construed the federal carjacking statute, 18 U.S.C. § 2119, “as establishing three separate offenses by the specification of distinct [penalty] elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” The Court highlighted, but did not resolve, what it called a grave and doubtful constitutional question, namely— under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. 119 S.Ct. at 1224 n. 6. Sheppard argues that Jones overruled our prior decisions holding that drug quantity is an element of sentencing under 21 U.S.C. § 841, not an element of the offense. The district court rejected this contention, and a number of circuits have likewise concluded that § 841(b) clearly evidences Congress’s intent that drug quantity be a sentencing factor, and that the suggestion in Jones of a broad constitutional prohibition against this type of legislation does not require rejection of clear circuit precedent. See United States v. Thomas, 204 F.3d 381, 384 (2d Cir.2000) (collecting cases); accord United States v. Grimaldo, 214 F.3d 967 (8th Cir.2000). This landscape changed dramatically with the Court’s decision last month in Apprendi. At issue was a conviction and lengthy sentence under a state statute allowing the sentencing judge to impose a sentence greater than the statutory maximum based upon the court’s finding that the crime was motivated by racial bias. The Supreme Court reversed, concluding that, under the Fifth and Sixth Amendments as made applicable to the States by the Due Process Clause of the Fourteenth Amendment, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a" } ]

[ { "docid": "22112991", "title": "", "text": "sentences again and again as each later-convicted murderer was given life imprisonment, because the circumstances of each additional defendant so sentenced would become additional factors to be considered. The process would be never-ending and the benchmark for comparison would be chronically undefined. Further, there is no reason to believe that the federal judiciary can render better justice. As the Florida Supreme Court itself so candidly admits, see Provence v. State, supra, 337 So.2d at 787, reasonable persons can differ over the fate of every criminal defendant in every death penalty case. If the federal courts retried again and again the aggravating and mitigating circumstances in each of these cases, we may at times reach results different from those reached in the Florida state courts, but our conclusions would be no more, nor no less, accurate. Such is the human condition. Cf. Stone v. Powell, 428 U.S. 465, 493 n. 35, 96 S.Ct. 3037, 3051-3052 n. 35, 49 L.Ed.2d 1067 (1976) (condemning the respondents’ “basic mistrust of the state courts as fair and competent forums for the adjudication of federal constitutional rights.”). The Supreme Court in Proffitt, or in Furman, Gregg, Jurek, Woodson, or Roberts, could not have intended these results. We understand these decisions to hold that capital punishment is not unconstitutional per se, and that a state, if it chooses, can punish murderers and seek to protect its citizenry by imposing the death penalty — so long as it does so through a statute with appropriate standards to guide discretion. If a state has such a properly drawn statute — and there can be no doubt that Florida has — -which the state follows in determining which convicted defendants receive the death penalty and which receive life imprisonment, then the arbitrariness and capriciousness condemned in Furman have been conclusively removed. For us to read these cases otherwise would thrust this Court and the district courts into the substantive decision making of the state court sentencing process which is rightfully reserved to the Florida state judiciary under Section 921.141. Under the Constitution, as well as fundamental notions of federalism and" } ]

[ { "docid": "11321270", "title": "", "text": "his own. Several facts tend to support his contention. First, none of the seven cases explicitly state in holding or dicta that a trial court may consider mitigating evidence outside the statute. Second, during the time that defendants in some cases were perhaps proffering non-statutory evidence, the Florida Supreme Court appeared to reaffirm in other cases the restrictive interpretation of Cooper. For instance, in Gibson v. State, 351 So.2d 948, 951-52 (Fla.1977), the court found no mitigating circumstances present at all and simply recited the lower court’s findings concerning the absence of statutory mitigation. See also Perry v. State, 395 So.2d 170, 174 (Fla.1981) (in trial before Songer, trial judge relied on Cooper and precluded evidence of non-statutory factors). The possibility of an unconstitutionally restrictive application of the statute has been recognized by almost every federal appellate decision mentioning the issue. Spaziano v. Florida, — U.S. -, 104 S.Ct. 3154, 3158 n. 4, 82 L.Ed.2d 340 (1984) (Florida statute in effect in 1976 required consideration of only statutory mitigating factors); Songer v. Wainwright, 769 F.2d 1488 at 1489 (11th Cir.1985); Foster v. Strickland, 707 F.2d 1339, 1346 (11th Cir.1983) (Cooper in direct conflict with Lockett ); Ford v. Strickland, 696 F.2d 804, 812 (11th Cir.), cert. denied, — U.S.-, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983) (same); Proffitt v. Wainwright, 685 F.2d 1227, 1238 & nn. 18-19,1248 (11th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983) (Florida law in flux, reasonable to interpret as limiting mitigating evidence to statutory categories); but see Spinkellink v. Wainwright, 578 F.2d 582, 620-21 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979) (statute on its face does not improperly restrict use of mitigating circumstances). Thus, Hitchcock has successfully proven the first half of his argument, to wit, Florida law in February 1977 was highly susceptible to an interpretation that violated Lockett v. Ohio. B. Effect of Florida law in Hitchcock’s case The petition for habeas corpus in this case forthrightly states that Hitchcock’s trial counsel, Tabscott, believed that Florida law prohibited him from introducing" }, { "docid": "23131475", "title": "", "text": "standard of review in affirming the trial court’s findings on aggravating and mitigating factors. Having reviewed petitioner’s claim, I agree with the majority that the Florida Supreme Court’s affirmance of these findings was consistent with its prior decisions and was not arbitrary, capricious, or otherwise in violation of petitioner’s eighth amendment rights. Although I am in basic agreement with the majority’s reasoning on this issue, one point needs clarification. The majority’s statement that federal courts “will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court,” Majority Opinion, supra at 819 (citing Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979)), correctly articulates the fundamental principle that federal courts do not sit to review state courts’ decisions on matters of state law. This statement should not be understood to deny the federal courts authority to review state courts’ application of capital sentencing criteria for compliance with federal constitutional requirements, however. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) demonstrates that such review is proper and that federal courts will reverse death sentences that — though based on proper statutory criteria — reflect an interpretation of such criteria so vague or broad as to violate the eighth amendment requirement of channelled sentencer discretion. Comparison of the case in which such federal challenge is being made to other cases in which the state court has applied the statutory criteria, albeit not conclusive, is relevant to the determination whether the criteria are being constitutionally applied. See id. at 429-33, 100 S.Ct. at 1765-67. The language in the Spinkellink opinion reflecting a contrary view is no longer valid after Godfrey. . In Part V of its opinion, the majority states three reasons for rejecting petitioner’s argument that his rights under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) were violated by the state courts’ failure to require that the sentencer find beyond a reasonable doubt that there were insufficient mitigating factors to" }, { "docid": "13702991", "title": "", "text": "following verdicts in a murder case: guilty, guilty without capital punishment, guilty of manslaughter, or not guilty. In 1973, apparently in response to the Furman decision, the legislature altered the capital punishment statute from discretionary to mandatory. The amended statute required that the penalty of death be imposed whenever an offender was found guilty of the newly defined crime of first degree murder. The Supreme Court declared this statute unconstitutional in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), holding that “[t]he Louisiana procedure neither provides standards to channel jury judgments nor permits review to check the arbitrary exercise of the capital jury’s de facto sentencing discretion.” Id at 335, 96 S.Ct. at 3007. The direction provided by the Supreme Court in Roberts led Louisiana to once again change its capital punishment scheme to ensure that a jury has the opportunity to consider all mitigating factors proffered as a basis for a sentence less than death. The statute also requires the jury to find at least one of a list of aggravating circumstances in order to impose a death sentence. When sitting in review of capital cases, the state Supreme Court must find the presence of at least one aggravating circumstance beyond a reasonable doubt. In addition, the court must examine all possible mitigating circumstances and compare the case with all other murder cases from the affected judicial district in order to ensure that the sentence is not disproportionate. This procedure was strictly followed in the instant case. Petitioner charges that this is not sufficient. Petitioner contends that in light of the care of the Supreme Court to adopt narrowing constructions of aggravating circumstances, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), two of the three aggravating circumstances found by the jury cannot stand. Consequently, his argument continues, the sentence of death must fall as well. Petitioner finds support for this conclusion in Stephens" }, { "docid": "1504075", "title": "", "text": "mentally impaired, then the requirements of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), which upheld the imposition of the death sentence where there were standards and the sentence of death was not arbitrarily or capriciously imposed become only parts of a litany without practical meaning. To find that mitigating circumstances do not exist where such mitigating circumstances clearly exist returns us to the state of affairs which were found by the Supreme Court in Furman v. Georgia to be prohibited by the Constitution. Magwood v. Smith, 608 F.Supp. at 228. Consequently, the district court granted a conditional writ of habeas corpus and “remanded” the case to the state trial court for another sentencing hearing. The State of Alabama cross-appeals this order, urging that the district court employed an incorrect standard of review. The State claims that under governing precedent, a federal court may not review the factual findings resulting from a properly conducted state court capital sentencing hearing. The State cites two cases to support its position, Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983) and Palmes v. Wainwright, 725 F.2d 1511 (11th Cir.), cert. denied, — U.S. —, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). In Ford, the petitioning death row inmate complained that “the Florida Supreme Court, in reviewing the evidence of aggravating and mitigating circumstances, violated the Eighth Amendment by failing to apply in his case the same standard of review applied in other capital cases.” 696 F.2d at 819. This court rejected that argument: Where in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, ... federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court.... This rule stands even though were we to retry" }, { "docid": "8663876", "title": "", "text": "204 (Fla.1976); Meeks v. State, 336 So.2d 1142 (Fla.1976); Messer v. State, 330 So.2d 137 (Fla.1976); and Halliwell v. State, 323 So.2d 557 (Fla. 1975), among others. Obviously, our construction of Section 921.141(6) has been that all relevant circumstances may be considered in mitigation, and that the factors listed in the statute merely indicate the principal factors to be considered. 365 So.2d at 700 (footnote omitted). Prior to that decision, this Court had addressed the issue of whether Florida’s death penalty statute as interpreted in Cooper violated Lockett. In Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert, denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), we reviewed Proffitt and Lockett and stated “[t]he conclusion is inevitable that the [Supreme] Court continues to view Section 921.141 as constitutional ____ Obviously, we are without power or authority to overrule the express finding of the Supreme Court.” 578 F.2d at 621. Spinkellink was tried in 1973, prior to Cooper. Spinkellink presented and argued to the jury circumstances not fitting within the statutory mitigating categories. Petitioner here was tried in January, 1977, which was after the Florida court’s decision in Cooper but before the United States Supreme Court’s decision in Lockett. Thus, petitioner argues that his counsel, misled by Cooper and without the clarification of Lockett and Songer, believed that he was limited to presenting evidence in mitigation that fit within one of the statutorily enumerated listings. In one context or another, this basic legal problem has been argued to this Court several times since Spinkellink but in no case has relief been granted because of Cooper. In Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), cert, denied, — U.S.—, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983), it was argued that Proffitt’s trial attorney was ineffective because he failed to present evidence of nonstatutory mitigating circumstances during the penalty phase of his trial in March, 1974. The Court indicated that at the time of Proffitt’s trial which was prior to Cooper, it was reasonable to assume that evidence of nonstatutory mitigating circumstances was not admissible. 685 F.2d at 1248. In" }, { "docid": "22217578", "title": "", "text": "(en banc), cert. granted,-U.S. -, 101 S.Ct. 1973, 68 L.Ed.2d 294 (1981). In the meantime, we decline to add to the present uncertainty surrounding these requirements. See generally Tyler v. Phelps, 643 F.2d 1095, 1100-02 & nn. 8-9 (5th Cir. 1981) (on panel rehearing from 622 F.2d 172 (5th Cir. 1980)); Holloway v. McElroy, 632 F.2d at 617 n.23, and cases cited therein. . In part III-E of this opinion, infra, we consider whether these effects violated Washington’s constitutional rights. . The trial court’s charge on these two aggravating circumstances was authorized by Miss. Code Ann. §§ 99-19-101(5)(d), (h) (1980 Supp.). . The trial court’s charge on these two mitigating circumstances was authorized by Miss. Code Ann. §§ 99-19-101(6)(a), (g) (1980 Supp.). . In Lockett, for example, the plurality opinion pointed out that although “the Florida statute approved in Proffitt [v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 916 (1976),] contained a list of mitigating factors, six Members of this Court assumed, in approving the statute, that the range of mitigating factors listed in the statute was not exclusive.” 438 U.S. at 606, 98 S.Ct. at 2965. This assumption, according to the Lockett plurality, had been based on the fact that “the Florida statute ‘provides that “[aggravating circumstances shall be limited to ... [eight specified factors]” ’ and that there was ‘no such limiting language in the list of statutory mitigating factors.’ ” 438 U.S. at 606 & n.15, 98 S.Ct. at 2966 & n.15 (quoting Proffitt, 428 U.S. at 250 n.8, 96 S.Ct. at 2965-66 n.8; emphasis, elipsis, and bracketed portion by Proffitt Court). In Spinkeilink v. Wainwright, 578 F.2d at 582, 620-21 (1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), we relied on the Lockett Court’s analysis of its earlier discussion of the Florida statute in Proffitt in rejecting a Lockett attack on that statute. We also noted that Spinkeilink “was afforded, and exercised, without limitation, every opportunity to set forth any and all mitigating factors in his favor,” including nonstatutory mitigating factors such as provocation. Id. at 621. Apparently, Spinkeilink" }, { "docid": "13822615", "title": "", "text": "73 L.Ed.2d 1140 (1982); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Spinkellink v. Wainwright, 578 F.2d 582, 604 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1976). This court concluded in Spinkellink v. Wainwright that' a federal habeas court generally cannot reexamine the proportionality review performed by a state appellate court in a capital case. 578 F.2d at 604. Spinkellink had contended that his crime, when compared to other Florida death penalty cases, was insufficiently gruesome or heinous to warrant the death penalty, id. at 602, and had highlighted seven other cases in which the Florida Supreme Court had reversed death sentences. All of these other cases allegedly involved defendants equally or more deserving of the death penalty than he. Id. at 602 n. 25. This court condemned a federal case by case analysis of the cases used by the state appellate court in its proportionality review as an unnecessary intrusion on the Florida judicial system. Id. at 604. The process would be never-ending and the bench-mark for comparison would be chronically undefined. Further, there is no reason to believe that the federal judiciary can render better justice.... If the federal courts retried again and again the aggravating and mitigating circumstances in each of these cases, we may at times reach results different from those reached in the Florida state courts, but our conclusion would be no more, nor no less, accurate. Such is the human condition. Id. at 605. The court qualified this doctrine of non-interference by noting that federal court intervention might be warranted if “a petitioner who has been sentenced to death can show that the facts and circumstance of his case are so clearly undeserving of capital punishment that to impose it would be patently unjust and would shock the conscience.” Id. at 606 n. 28. Petitioner argues that the review conducted by the Georgia Supreme Court in this" }, { "docid": "23032630", "title": "", "text": "doubt.” Id. at 313-18, 99 S.Ct. at 2785-88. We need not address whether a similar evidentiary review function must be exercised with respect to the facts underlying capital sentencing decisions, however, cf. Spinkellink v. Wainwright, 578 F.2d 582, 606 n.28 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979) (evidentiary review proper where application of § 921.141 in particular case is “patently unjust and [] shock[s] the conscience”), since appellant’s claim is cognizable as a vagueness challenge to the statute as applied, see text infra. . The state argues that the former Fifth Circuit decision in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978) precludes us from reviewing the Florida court’s application of specific aggravating factors to the facts of this case. In Spinkellink, the court interpreted the Supreme Court’s decision in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) as holding that the aggravating and mitigating provisions of the Florida death penalty statute “conclusively remove[] the arbitrariness which Furman held violative of the Eighth and Fourteenth Amendments.” See Spinkellink v. Wainwright, 578 F.2d at 604-06. The court therefore declined to review an attack on the statute as applied absent facts and circumstances “so clearly undeserving of capital punishment that to impose it would be patently unjust and would shock the conscience.” Id. at 605-06 & n.28. Two years after the former Fifth Circuit decided Spinkellink, the Supreme Court ad dressed an attack on a state court’s application of an aggravating factor under its capital sentencing statute. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Four Justices joined in the plurality opinion, which accorded full review to this contention. Id. at 422, 100 S.Ct. at 1762. Two Justices concurred in the judgment both on the ground that the death penalty is under all circumstances unconstitutional and in agreement with the plurality’s conclusion concerning the application of the statute. See id. at 433-42, 100 S.Ct. at 1767-72. (Brennan, J. and Marshall, J., concurring). In view of Godfrey, we can only conclude that the" }, { "docid": "23131474", "title": "", "text": "Rule 42(b) can be interpreted as giving an appellant the right to dismiss an appeal subject only to terms properly fixed by the court or the parties. In my view, no such terms are in force here. I question whether a timeliness restriction is a term that can be “fixed by the court,” particularly subsequent to the filing of the motion to dismiss. Furthermore, there is a possible Article III case or controversy problem, going to the heart of our power to issue this opinion, which is raised by appellant’s effort to dismiss his appeal. See, e.g., United States Parole Commission v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980), quoting Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973) (“ ‘requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)’ ”). This issue deserves more thorough consideration. . In Part VI, the majority addresses petitioner’s claim that the Florida Supreme Court failed to apply a consistent standard of review in affirming the trial court’s findings on aggravating and mitigating factors. Having reviewed petitioner’s claim, I agree with the majority that the Florida Supreme Court’s affirmance of these findings was consistent with its prior decisions and was not arbitrary, capricious, or otherwise in violation of petitioner’s eighth amendment rights. Although I am in basic agreement with the majority’s reasoning on this issue, one point needs clarification. The majority’s statement that federal courts “will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court,” Majority Opinion, supra at 819 (citing Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979)), correctly articulates the fundamental principle that federal courts do not sit to review state courts’ decisions on matters of state law. This statement should not be understood to deny the federal courts authority to review state courts’ application of capital sentencing criteria for compliance with federal constitutional requirements, however. Godfrey v. Georgia," }, { "docid": "23131300", "title": "", "text": "sentence is unconstitutional for failure to require proof of the existence of aggravating circumstances beyond a reasonable doubt. Because this claim was never specifically briefed or raised before the panel, it is not now properly before this Court en banc. The requirement that the existence of aggravating circumstances be proved beyond a reasonable doubt is, however, a' settled principle of Florida law. See Jent v. State, 408 So.2d 1024, 1032 (Fla.1981); State v. Dixon, 283 So.2d at 9. We note that in this case, as in nearly all cases, there is no dispute as to the facts on which the existence of the aggravating circumstances is based. VI. Florida Supreme Court’s Standard of Review Ford claims the Florida Supreme Court, in reviewing the evidence of aggravating and mitigating circumstances, violated the Eighth Amendment by failing to apply in his case the same standard of review applied in other capital cases. Specifically, he contends that under. Florida case law, the court should have set aside two aggravating circumstances, collapsed two aggravating circumstances into one, and found the existence of one statutory mitigating circumstance and of nonstatutory mitigating circumstances. While petitioner characterizes this contention as the Florida Supreme Court’s failure to apply a consistent standard of review in violation of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the district court correctly discerned that he is simply “quarreling” with the state court. Where in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969, federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court. Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). This rule stands even though were we to retry the aggravating and mitigating circumstances in these cases, “we may at times reach results different from those reached in the Florida state courts.” Id. at 605. The Supreme Court" }, { "docid": "23131301", "title": "", "text": "the existence of one statutory mitigating circumstance and of nonstatutory mitigating circumstances. While petitioner characterizes this contention as the Florida Supreme Court’s failure to apply a consistent standard of review in violation of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the district court correctly discerned that he is simply “quarreling” with the state court. Where in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969, federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court. Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). This rule stands even though were we to retry the aggravating and mitigating circumstances in these cases, “we may at times reach results different from those reached in the Florida state courts.” Id. at 605. The Supreme Court of Florida is the ultimate authority on Florida law and we do not sit to question its interpretation of that State’s statutes. See Tennon v. Ricketts, 574 F.2d 1243, 1245 (5th Cir.1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 57 (1979). Ford has not cited and we have not found any habeas corpus decision in which this Court has reversed a death sentence due to the state court’s incorrect decision as to the existence or absence of aggravating and mitigating circumstances. Moreover, examination of the relevant Florida Supreme Court decisions reveals that its review of petitioner’s death sentence was not arbitrary, capricious or in disaccord with constitutional principles relating to sentencing in capital cases. The Florida Supreme Court reviewed the circumstances of Ford’s case consistently with its principles governing the aggravating and mitigating circumstances at issue in this case, and no deficiency under Godfrey is stated. Under 28 U.S.C.A. § 2254(d), we presume correct the facts properly found by the state courts. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66" }, { "docid": "13822614", "title": "", "text": "joined by Blackmun, Powell and Stevens, JJ.) (“if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty”); Wainwright v. Spenkelink, 442 U.S. 901, 903, 99 S.Ct. 2421, 2422, 60 L.Ed.2d 1075 (1979) (Rehnquist, J., dissenting) (“a State whose citizens have expressed through their elected representatives and their judges and juries a will to impose the death penalty for offenses such as murder may do so if the State conforms its trial and sentencing procedures to the requirements enunciated in this Court’s eases”); Roberts v. Louisiana, 428 U.S. 325, 337, 96 S.Ct. 3001, 3008, 49 L.Ed.2d 974 (1976) (White, J., joined by Burger, C.J., Blackmun and Rehnquist, JJ., dissenting). Federal habeas courts must and should examine whether the application of approved sentencing procedures in a particular case creates a substantial risk that the punishment has been inflicted in an arbitrary and capricious manner. Eg., Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Spinkellink v. Wainwright, 578 F.2d 582, 604 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1976). This court concluded in Spinkellink v. Wainwright that' a federal habeas court generally cannot reexamine the proportionality review performed by a state appellate court in a capital case. 578 F.2d at 604. Spinkellink had contended that his crime, when compared to other Florida death penalty cases, was insufficiently gruesome or heinous to warrant the death penalty, id. at 602, and had highlighted seven other cases in which the Florida Supreme Court had reversed death sentences. All of these other cases allegedly involved defendants equally or more deserving of the death penalty than he. Id. at 602 n. 25. This court condemned a federal case by case analysis of the cases used" }, { "docid": "23131269", "title": "", "text": "be faced with the question of whether the Constitution was violated. Does Florida state law permit the use of such nonrecord material in the review of Ford’s sentence, or any other capital sentence? The ultimate source of any state’s law is found in the decisions of its highest court. See Tennon v. Ricketts, 574 F.2d 1243 (5th Cir.1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 57 (1979). There are times when a state’s supreme court has not yet decided a point of law so that the decisions of lower courts, statutes and other sources must suffice. There are other times when decisions by the state’s court of last resort, not being clearly on point, must themselves be interpreted for a federal court to determine what the state court would decide on the precise point. The task is easy here because the Supreme Court of Florida has decided the “case on all fours” with this one in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 71 L.Ed.2d 407 (1981). In Brown, the court held that state law does not permit the use of such nonrecord material in the appellate review of a capital sentence. [A]s a matter of law our view of the non-record information petitioners have identified is totally irrelevant either to our appellate function in capital cases as it bears on the operation of the statute, or to the validity of any individual death sentence. 392 So.2d at 1331. The record of each proceeding, and precedent, necessarily frame our determinations in sentence review.... Factors or information outside the record play no part in our sentence review role. Id. at 1332. For a federal court, regardless of the reasons relied on and whether the law an nounced is good or bad law, the decision by the Florida court concludes the point. Was the material used in contravention of state law? The federal court must be content with the answer that it was not so used for these reasons. First, there is a presumption of regularity in state proceedings, which would" }, { "docid": "23131302", "title": "", "text": "of Florida is the ultimate authority on Florida law and we do not sit to question its interpretation of that State’s statutes. See Tennon v. Ricketts, 574 F.2d 1243, 1245 (5th Cir.1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 57 (1979). Ford has not cited and we have not found any habeas corpus decision in which this Court has reversed a death sentence due to the state court’s incorrect decision as to the existence or absence of aggravating and mitigating circumstances. Moreover, examination of the relevant Florida Supreme Court decisions reveals that its review of petitioner’s death sentence was not arbitrary, capricious or in disaccord with constitutional principles relating to sentencing in capital cases. The Florida Supreme Court reviewed the circumstances of Ford’s case consistently with its principles governing the aggravating and mitigating circumstances at issue in this case, and no deficiency under Godfrey is stated. Under 28 U.S.C.A. § 2254(d), we presume correct the facts properly found by the state courts. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), after remand, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). There is nothing in this record to show the Florida Supreme Court failed to apply the standard of review mandated by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny. VII. Assistance of Counsel at Sentencing Petitioner contends he received ineffective assistance of counsel at sentencing. Specifically, he claims that although counsel called character witnesses and a psychiatrist to testify in mitigation, he “failed to focus the trial judge’s and jury’s attention on the critical factors relevant to the sentence determination.” Careful review of the record and Ford’s specific arguments reveals this contention is nothing more than an attack on the reasoned tactics and strategy of experienced trial counsel. In reviewing ineffective assistance of counsel claims, we do not sit to second'guess considered professional judgments with the benefit of 20/20 hindsight. Washington v. Watkins, 655 F.2d at 1355; Easter v. Estelle, 609 F.2d 756 (5th Cir.1980). We have consistently held that counsel will" }, { "docid": "23032629", "title": "", "text": "design and while the Defendant, CHARLES WILLIAM PROFFITT, was engaged in the commission of a felony, to-wit: burglary. (B) That the Defendant, CHARLES WILLIAM PROFFITT, has the propensity to commit the crime for which he was convicted, to-wit: Murder in the First Degree and is a danger and a menace to society. (C) That the murder of JOEL RONNIE MEDGEBOW by the Defendant, CHARLES WILLIAM PROFFITT, was especially heinous, atrocious and cruel. (D) That the Defendant knowingly through his voluntary and intentional acts leading up to and during the course of the commission of the offense for which he was convicted created a great risk of serious bodily harm and death to many persons. I Trial Record 57-58. . Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), it is clear that federal courts’ responsibilities in reviewing habeas challenges to state court convictions encompass a limited evidentiary review aspect —namely, the determination “whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 313-18, 99 S.Ct. at 2785-88. We need not address whether a similar evidentiary review function must be exercised with respect to the facts underlying capital sentencing decisions, however, cf. Spinkellink v. Wainwright, 578 F.2d 582, 606 n.28 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979) (evidentiary review proper where application of § 921.141 in particular case is “patently unjust and [] shock[s] the conscience”), since appellant’s claim is cognizable as a vagueness challenge to the statute as applied, see text infra. . The state argues that the former Fifth Circuit decision in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978) precludes us from reviewing the Florida court’s application of specific aggravating factors to the facts of this case. In Spinkellink, the court interpreted the Supreme Court’s decision in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) as holding that the aggravating and mitigating provisions of the Florida death penalty statute “conclusively remove[] the arbitrariness which Furman held violative of" }, { "docid": "23131514", "title": "", "text": "State, 374 So.2d at 501-02 n. 1. The evidence cited in support of factor (b), however, particularly the defendant’s “admi[ssion] [of] the unlawful sale of narcotics drugs,” is irrelevant to any of the other statutory factors. . The Florida Supreme Court has reversed death sentences in cases in which it has invalidated the only aggravating factor(s) found by the sentencing judge. E.g., Perry v. State, 395 So.2d 170, 172, 174-75 (Fla.1981); Purdy v. State, 343 So.2d 4 (Fla.1977). Moreover, it has reversed death sentences partially predicated on improper aggravating circumstances when any mitigating factors were established. E.g., Gafford v. State, 387 So.2d 333, 337 (Fla.1980); Lewis v. State, 377 So.2d 640, 646-47 (Fla.1980); Fleming v. State, 374 So.2d 954, 957-59 (Fla.1979). The United States Supreme Court has reversed a death sentence on federal constitutional grounds where the state supreme court rejected all three of the theories relied on by the sentencing jury in support of an aggravating factor. Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) (per curiam). The Court held the defendant’s right to due process was violated by the state supreme court’s affirmance of his sentence on the basis of a theory that the sentencing jury had not been instructed to consider. Id. at 16-17, 99 S.Ct. at 236-237. See also Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (holding sentencer’s application of “outrageously or wantonly vile, horrible and inhuman” aggravating factor to particular case unconstitutional and invalidating death sentence based solely on that factor). . An essential premise of the Majority’s and the Florida court’s harmless-error analysis— that there are no mitigating factors — cannot, in my view, be established in this case because the trial judge and jury erroneously believed they could not consider nonstatutory mitigating evidence. See Section II.B. supra. In the following section of this opinion I will assume that no mitigating circumstances could have been established, however, because the outcome of petitioner’s aggravating factors claim, correctly analyzed, does not depend on the existence of mitigating circumstances. . The Florida cases do not make" }, { "docid": "22217579", "title": "", "text": "in the statute was not exclusive.” 438 U.S. at 606, 98 S.Ct. at 2965. This assumption, according to the Lockett plurality, had been based on the fact that “the Florida statute ‘provides that “[aggravating circumstances shall be limited to ... [eight specified factors]” ’ and that there was ‘no such limiting language in the list of statutory mitigating factors.’ ” 438 U.S. at 606 & n.15, 98 S.Ct. at 2966 & n.15 (quoting Proffitt, 428 U.S. at 250 n.8, 96 S.Ct. at 2965-66 n.8; emphasis, elipsis, and bracketed portion by Proffitt Court). In Spinkeilink v. Wainwright, 578 F.2d at 582, 620-21 (1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), we relied on the Lockett Court’s analysis of its earlier discussion of the Florida statute in Proffitt in rejecting a Lockett attack on that statute. We also noted that Spinkeilink “was afforded, and exercised, without limitation, every opportunity to set forth any and all mitigating factors in his favor,” including nonstatutory mitigating factors such as provocation. Id. at 621. Apparently, Spinkeilink did not contend that the trial court’s charge impermissibly limited the jury’s consideration of those nonstatutory mitigating factors. Accordingly, Spinkeilink has no direct bearing on the case at bar. . This would seem to be especially true in a capital case, given the degree of precision required in channeling the jury’s sentencing discretion. Sée part III-E of this opinion, infra.- . Lockett had remained outside while accomplices entered and robbed the pawnshop, and hence was not present at the actual shooting. Nonetheless, Ohio’s statutory felony murder rule and aiding and abetting statute permitted the jury to find intent to kill on the part of an accomplice who had taken any part in a life-threatening crime. . Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 916 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325," }, { "docid": "13702992", "title": "", "text": "of aggravating circumstances in order to impose a death sentence. When sitting in review of capital cases, the state Supreme Court must find the presence of at least one aggravating circumstance beyond a reasonable doubt. In addition, the court must examine all possible mitigating circumstances and compare the case with all other murder cases from the affected judicial district in order to ensure that the sentence is not disproportionate. This procedure was strictly followed in the instant case. Petitioner charges that this is not sufficient. Petitioner contends that in light of the care of the Supreme Court to adopt narrowing constructions of aggravating circumstances, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), two of the three aggravating circumstances found by the jury cannot stand. Consequently, his argument continues, the sentence of death must fall as well. Petitioner finds support for this conclusion in Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), cert. granted, 454 U.S. 814, 102 S.Ct. 90, 70 L.Ed.2d 82 (1981), a case currently pending before the Supreme Court. In Stephens, a panel of this Court vacated a death sentence because one aggravating circumstance found by the jury, a substantial history of serious assaultive criminal convictions, was later held unconstitutional. This action was taken despite the presence of two other valid aggravating circumstances. The Court based its decision on Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), where the Supreme Court held: The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury was instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable," }, { "docid": "23131268", "title": "", "text": "deciding the Florida Supreme Court received such information, and that it was available to the members of the court. The court itself assumed as much in its consideration of the allegations in Brown v. Wainwright, 392 So.2d at 1331 (“Even if petitioners’ most serious charges were accepted as true. .. ”). Such assumption by us eliminates the necessity for any kind of an evidentiary hearing or other fact-determining inquiry of the Florida court to determine the truth of the allegations. With these assumptions, the inquiry from a constitutional standpoint is first, whether state law permits the use of such materials; second, if not, was the material nevertheless used in contravention of state law; and third, if not intentionally used in the review of capital cases, did the reading of such information somehow affect the judgment of the members of the Florida Supreme Court so that a federal court should treat the case as if the information had in fact been used. Only if one of these three questions is answered in the affirmative, would we be faced with the question of whether the Constitution was violated. Does Florida state law permit the use of such nonrecord material in the review of Ford’s sentence, or any other capital sentence? The ultimate source of any state’s law is found in the decisions of its highest court. See Tennon v. Ricketts, 574 F.2d 1243 (5th Cir.1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 57 (1979). There are times when a state’s supreme court has not yet decided a point of law so that the decisions of lower courts, statutes and other sources must suffice. There are other times when decisions by the state’s court of last resort, not being clearly on point, must themselves be interpreted for a federal court to determine what the state court would decide on the precise point. The task is easy here because the Supreme Court of Florida has decided the “case on all fours” with this one in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 71" }, { "docid": "1504076", "title": "", "text": "may not review the factual findings resulting from a properly conducted state court capital sentencing hearing. The State cites two cases to support its position, Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983) and Palmes v. Wainwright, 725 F.2d 1511 (11th Cir.), cert. denied, — U.S. —, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). In Ford, the petitioning death row inmate complained that “the Florida Supreme Court, in reviewing the evidence of aggravating and mitigating circumstances, violated the Eighth Amendment by failing to apply in his case the same standard of review applied in other capital cases.” 696 F.2d at 819. This court rejected that argument: Where in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, ... federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court.... This rule stands even though were we to retry the aggravating and mitigating circumstances in these cases, ‘we may at times reach results different from these reached in the Florida state courts.’ Id. In Palmes, the petitioner contended that the sentencing court failed to consider evidence in support of a non-statutory mitigating factor. The evidence was admitted at trial, but was not mentioned in the trial court’s written order. Again, this court disagreed, stating: The weight the trial judge gave to any one factor was wholly within her discretion. ... Our review is completed once it is established that a full hearing was conducted in which appellant’s counsel was given an opportunity to present all of the mitigation evidence. There is no indication whatsoever that the trial judge did not conscientiously consider everything presented. 725 F.2d at 1523. These two cases articulate the rule that a federal habeas corpus court will not re-evaluate the weight accorded to particular aggravating and mitigating factors. This determination is left to state courts, provided the death-penalty statute and sentencing hearing meet relevant constitutional requirements. See also Johnson v." } ]

[ { "docid": "13916869", "title": "", "text": "inferences which we have stated were properly deducible from the evidence, it follows that the jury would have been amply ■ justified in finding that the clearing house had made a wrongful disposition of a trust fund in favor of the City Deposit Bank, which institution had notice, either actual or constructive, of the misappropriation. Western Tie & Timber Co. v. Brown, supra. We interpret the certificate of the Supreme Court of Ohio as establishing that that court did not rest its affirmance of the judgment rendered by the trial court against the trustees upon the mere technical ground that the petition counted upon, a voidable preference, and there could not be a recovery unless the facts constituted such preference, even although the evidence justified the inference that the money which the City Deposit' Bank received from the clearing house association, under the circumstances we have stated, was the property of. Reinhard & Company, which the bank by operation of the bankrúpt law was obliged to account for to the bankrupt es-state. We so conclude, because the Supreme Court of Ohio not only certified that' its decision “ was adverse to the claims and contentions of the said plaintiffs in error, in this, that said court decided that said assignment and transfer of said sum of $1,161.74 was not an unlawful preference, in violation of the said provisions of the bankrupt law,” but in addition, moreover, certified that the case was decided against the trustees, because under the facts proved the trustee “was not deprived of any right under said (bankrupt) law, and was not entitled to have said assignment and transfer set aside, and to recover the said sum of $1,161.74 from said defendant in error.” The judgment of the Supreme Court of Ohio must he reversed and the cause he remanded to that court for further proceedings, not inconsistent with this opinion. On motion of the plaintiff in error, Fred C. Rector, trustee, this court orders it to be certified and made part of the record in this case, and the Honorable William T. Spear, Chief Justice of" } ]

[ { "docid": "2349717", "title": "", "text": "said deposit account. The trustee alleges the indorsements to the bank were made without restriction, and he was allowed to draw against the deposits at will, that the deposit slips showed the credits were provisional only until the proceeds were collected, and at the time the bankrupt was charged with these items on the collection ledger of the bank. The bank alleges likewise that the cheek and drafts were so indorsed, deposited, and charged, and further that the deposits were made upon the express understanding and condition that the credits were provisional or conditional only, and the bank at all times retained in its hands or control sufficient funds of the bankrupt to offset any provisional eredit given for the check and drafts, that the balance in the account was allowed to be reduced to $198.54, only because the Baneitaly stock had been sold and the proceeds credited, and it claims the right to set off against the proceeds and the funds of the bankrupt in its hands the debits of the dishonored check and drafts, under section 68, of the Bankruptcy Act (11 USCA § 108). An additional deposit of $11.25 appears to have been made in his account on January 22, 1929, but its source is not disclosed. The bank also charged the account with $25.58 as interest on deferred collections, and with $8.04 as expense of insurance and telegrams. The cheek and drafts were after bankruptcy returned unpaid and charged to the deposit account. The total credits therein amounted to $7,453.02. Of this amount the bank delivered to the trustee $4,523.32, but declined to turn over the balance of $2,929.-70, having charged the account with the check and drafts and the minor charges incident to them. The trustee claims the right to recover this deposit balance by summary order. The bank asserts the privilege of a plenary suit to determine its adverse claim to the same. A bankrupt’s estate vests in his trustee at the date of the petition in bankruptcy. Everett v. Judson, 228 U. S. 474, 33 S. Ct. 568, 57 L. Ed. 927, 46" }, { "docid": "6029596", "title": "", "text": "it was adjudged a bankrupt, and the trustee brought this suit against the bank to recover as an unlawful preference the three amounts that the bank received. The cheeking balance, which was first applied to the indebtedness, must be treated separately from the two later applications. This balance was accumulated in the bank in the usual course of business and was not built up or deposited for the purpose of giving a preference to the bank. At the time it was applied to the indebtedness of the milling company that company was insolvent. We have no doubt of. the right of the bank to make the application upon that basis. New York County National Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Studley v. Boylston National Bank of Boston, 229 U. S. 523, 33 S. Ct. 806, 57 L. Ed. 1313; Fourth Nat. Bank of Wichita, Kan., v. Smith (C. C. A.) 240 F. 19. And it was immaterial to the existence of this right that the debts were not due, as under section 68a of the Bankruptcy Act (11 USCA § 108(a) the right of set-off is preserved as to provable debts, whether due or not. Germania Sav. Bank Trust Co. v. Loeb (6 C. C. A.) 188 F. 285. The other two sums were paid in after the hank account had been closed by the application of the balance existing on the morning of April 26th. They were not accepted by appellee for deposit, but were taken by it — regardless of the purpose of the bankrupt — with the intention of applying them to the indebtedness of the bankrupt. A bank cannot accept funds offered for deposit, and claim the rights attaching to them as such, when they were in fact accepted for and were immediately applied to a wholly different purpose. Under such circumstances they take on the characteristics of the thing for which they were used. As to those two items, therefore, the trustee should have recovered. The decree is reversed, and the cause remanded for a new" }, { "docid": "11571734", "title": "", "text": "An involuntary petition in bankruptcy was filed against it on February 15, 1910, and on March 4, 1910, it was adjudged a bankrupt, and on March 28, 1910, the complainant was appointed trustee of its estate. The transactions out of which the preferences arose were as follows: Subsequent to October 15, 1909, four months prior to the filing of the petition in bankruptcy, the bankrupt assigned to O. L. Alexander, its president, certain accounts receivable belonging to it, and thereafter the said Alexander collected on the assigned accounts' certain moneys which he deposited with the defendant in an account known as the “O. L. Alexander Collateral Account.” It is averred -that defendant knew that the moneys so deposited were the proceeds of the assigned accounts, and that it also knew that the accounts had been assigned to Alexander by the bankrupt in pursuance of a certain resolution adopted on October 12, 1909, which resolved: “That this company assign to the said O. T. Alexander as collateral security for the indorsements, as above stated, accounts receivable of this company and the- proceeds thereof aggregating an amount not exceeding twenty thousand dollars ($20,000),” The moneys received from these assigned accounts were deposited in defendant’s bank in the manner above stated. The defendant credited the account with the amounts so received and debited it with the amounts taken from it to apply upon the notes made by the bankrupt and indorsed .by Alexander and held by defendant. This was done pursuant to Alexander’s direction. On January 12, 1910, defendant had received out of this account $10,950 and applied it on the bankrupt’s indebtedness. On or about January 17, 1910, the bankrupt paid to defendant to apply on its indebtedness the farther sum of $4,266.90. The claim is, as to this last sum, that the bankrupt had sold in bulk to Wallace & Co. on January 17, 1910, its entire stock of goods, wares, and merchandise with the knowledge and consent of defendant, and upon the understanding and agreement that defendant would discount the notes of Wallace & Co. and. apply the same in" }, { "docid": "13728381", "title": "", "text": "the meaning of the Bankruptcy Act, must be one diminishing the assets of the bankrupt, used the following language: “As we have seen, a deposit of money to one’s credit in a bank does not operate to diminish the estate of the depositor, for when he parts with the money he creates at the same time, on the part of the bank, an obligation to pay the amount of the deposit as soon as the depositor may see fit to draw a check against it. It is not a transfer of property as a payment, pledge, mortgage, gift, or security. It is true that it creates a debt, which, if the creditor may set it off under section 68, amounts to permitting a creditor of that class to obtain more from the bankrupt’s estate than creditors who are not in the same situation and do not hold any debts of the bankrupt subject to set-off. But this does not, in our opinion, operate to enlarge the scope of the statute defining preferences, so as to prevent set-off in cases coming within the terms of section 68a. If this argument were to prevail, it would in cases of insolvency defeat the right of set-off recognized and enforced in the law, as every creditor of the bankrupt holding a claim against the estate subject to reduction to the full amount of a debt due the bankrupt receives a preference in the fact that to the extent of the set-off he is paid in full.” In the case of Studley v. Bank, 229 U. S. 523, 33 Sup. Ct. 806, 57 L,. Ed. 1313, the Collver Company had a general deposit and checking account with the Boylston Bank. It also owed the bank $25,000, represented by five notes maturing September 12th, 20th, 30th, October 3d, and October 14th. The first three notes were paid by check on the Boylston Bank, and the note due October 3d was charged by the bank to the company’s deposit account, and on the same day a renewal note for $2,500 was discounted; and the note falling due" }, { "docid": "13324083", "title": "", "text": "$30,000' which he had obtained from the Mount Vernon Trust Company and to leave a book balance due from him to the bankrupt of $91,191.50. So far as appears, the defendant knew nothing of these entries in the Sparler account on the bankrupt’s books. On the trial, it was conceded that the portion of the payment of the notes which came from the balance of the bankrupt’s cheeking account in the defendant bank could not be recovered. The court entered judgment for the plaintiff for $19,000 and denied recovery of the remaining $30,000 on the ground that the bankrupt’s assets had not been depleted by that portion of the payment since Sparler, and not the bankrupt, had provided that part of the payment. It is well settled that unless an insolvent debtor so disposes of his property for the benefit of a creditor that the estate of the debtor, which would otherwise be available to meet the claims of all creditors, is diminished, the creditor cannot be charged with receiving a preference. Western Tie & Timber Co. v. Brown, 196 U. S. 502, 509, 25 S. Ct. 339, 49 L. Ed. 571, 574; National Bank of Newport v. National Herkimer County Bank, 225 U. S. 178, 32 S. Ct. 633, 56 L. Ed. 1042; New York County National Bank v. Massey, 192 U. S. 138, 147, 24 S. Ct. 199, 48 L. Ed. 380, 384. When the cashier’s cheek for $49,000 was indorsed by Sparler individually and by the bankrupt by him as its treasurer and delivered to the defendant, the payment so made had in it only $19,000 of what had previously been the bankrupt’s money. It is claimed that the bankrupt’s indorsement should be taken to show that Sparler as an individual first used the check to pay the bankrupt the $49,000 on account of his indebtedness to it and then as the treasurer of the bankrupt used it to pay the balance due the defendant on the notes. This seems to be a very unreal way of looking at the transaction, though it must be confessed that" }, { "docid": "7714572", "title": "", "text": "of fraud or collusion between the bank and the bankrupts with a view of creating a preferential transfer (Bank v. Massey, 192 U. S. 138, 148, 24 S. Ct. 199, 48 L. Ed. 380), the bank had a lien thereon and a right of set-off thereunder, the effect of which was not destroyed by the fact that the depositors’, voluntary cheeks were taken for payments on the bank’s paper, instead of applying the deposits directly thereon (Studley v. Boylston Bank, 229 U. S. 523, 526, 33 S. Ct. 806, 57 L. Ed. 1313; Toof v. Bank [C. C. A. 6] 206 F. 250, 252; American Bank, etc., Co. v. Coppard [C. C. A. 5] 227 F. 597; Walsh v. Bank [C. C. A. 6] 201 F. 522). While there are considerations, which, standing alone, would suggest that even during this period the bank had suspicions of the bankrupts’ solvency, yet not only does mere suspicion not amount to proof of reasonable cause to believe, but, considering the entire ease, we are better content with the conclusion that the trustee has not sustained the burden of showing that the payments previous to December 25 were preferential. 2. As to the payments received after the latter date the situation is quite different. On December 24th, the bankrupts’ outstanding paper amounted to $18,000, which was nearly $5,000 more than the bank had been-willing to carry. The time for reducing to the 50 per cent, limit would expire on December 31st. The holiday season alone intervened. Of this $18,000 remaining indebtedness, $13,-000 was demand paper; the remaining $5,000 was time paper, to mature January 3, 1925. During December the payment of bankrupts’, cheeks had caused, at various times, small overdrafts. But on December 24, the day before Christmas, when the bankrupts’ credit balance was about $600, the demand note for $3,000 was charged to the deposit account, thus not only wiping out the previously existing credit balance, but leaving an overdraft of $2,400.79, which, so far as appears, or as is inferable from the record, would seem to be many times larger than had" }, { "docid": "13324084", "title": "", "text": "Timber Co. v. Brown, 196 U. S. 502, 509, 25 S. Ct. 339, 49 L. Ed. 571, 574; National Bank of Newport v. National Herkimer County Bank, 225 U. S. 178, 32 S. Ct. 633, 56 L. Ed. 1042; New York County National Bank v. Massey, 192 U. S. 138, 147, 24 S. Ct. 199, 48 L. Ed. 380, 384. When the cashier’s cheek for $49,000 was indorsed by Sparler individually and by the bankrupt by him as its treasurer and delivered to the defendant, the payment so made had in it only $19,000 of what had previously been the bankrupt’s money. It is claimed that the bankrupt’s indorsement should be taken to show that Sparler as an individual first used the check to pay the bankrupt the $49,000 on account of his indebtedness to it and then as the treasurer of the bankrupt used it to pay the balance due the defendant on the notes. This seems to be a very unreal way of looking at the transaction, though it must be confessed that this would be one way to account for the indorsement. Though there is nothing to indicate that any one supposed it would add, or thought that there was any necessity for adding, any strength to the cashier’s check of the Bronx Borough Bank, an accommodation indorsement would be another way to account for it. That Sparler merely wanted the cheek to bear some evidence that it had been used for the benefit of the bankrupt would be another, and perhaps the most reasonable, explanation of the bankrupt’s indorsement. Were nothing known of the circumstances, the inference might, perhaps, be drawn from its indorsement that at some time the bankrupt owned this check. When Sparler, who was the payee, indorsed the cheek himself it became payable to bearer. The bankrupt’s indorsement did not as a matter of law, in so far as the question of whether the bankrupt owned the cheek is concerned, alone require the trial court to hold that the cheek represented funds belonging to the bankrupt at the time the defendant received it." }, { "docid": "13728384", "title": "", "text": "Court, and the Circuit Court of Appeals that the deposits were made in due course of business, and without any intent to prefer the bank. The Supreme Court, in affirming the judgment of the Court of Appeals, said: “We find nothing in the record to indicate that the deposits were made for the purpose of enabling the bank to secure a preference by the exercise of the right of set-off. The case, therefore, comes directly within the decision in New York County National Bank v. Massey, 192 U. S. 138 L24 Sup. Ct. 199, 48 L. Ed. 380], where $3,S84 deposited by an insolvent customer, in good faith, four days before the filing of the petition against him was allowed to the bank by way of set-off on notes of the bankrupt held by it. An effort is made to distinguish that ease from this, by calling attention to the fact that here, by checks drawn on the account or notes charged to the account, the parties themselves voluntarily made the set-off before the petition was filed, while in the Massey Case the trustee, under the supervision of the referee stated an account and allowed the set-off as permitted by section 68a, which provides ‘that in all cases of mutual debts, or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed, or paid.’ That section did not create the right of set-off, but recognized its existence and provided a method by which it could be enforced, even after bankruptcy.” In reference to the objection that the set-offs had been made by the parties rather' than by the trustee in the bankruptcy proceedings, the court said: “If this set-off of mutual debts has been lawfully made by the parties before the petition is filed, there is no necessity of the trustee doing so. If it has not been done by the parties, then, under command of the statute, it must be done by the trustee. But there" }, { "docid": "22201963", "title": "", "text": "the bankrupt estate, is wanting. The fact that what was done' worked to the benefit of the creditor and in a sense gave him a preference is not enough, unless the estate of the bankrupt was thereby diminished’. New York County National Bank v. Massey, supra. It is contended, however, that the set-off cannot be allowed because of- the provisions- of § 68b of the Bankruptcy Act, which provides: “Section 68b. A set-off or counter-claim shall not be allowed in favor of any debtor of the bankrupt which (1) is not provable against the estate; or (2) was purchased by or was transferred to him after the filing of the petition, or within four months before such filing, with a view to such use and with knowledge or notice that such bankrupt was insolvent, or had committed an act of bankruptcy.” It is the main purpose of this statute, as its terms show, to prevent debtors of the bankrupt from acquiring claims against the bankrupt for use by way of set-off and reduction of their indebtedness to the estate. There is no question of the solvency of Prince when he deposited the money to secure the certificates; and what was done was not the acquisition of a claim against Prince with a view to setting it off against the Bank’s indebtedness on the certificates, but was-the satisfaction, without diminution of the estate of the bankrupt, of possible claims of others who, in the event of Prince’s default, would have been entitled to the deposits represented by the certificates. We do not think such transaction, comes within the language or reason of § 68b. It is said, however, that the case of Western Tie & Timber Co. v. Brown, 196 U. S. 502, holds to the contrary. In that case, it appears, one Harrison, a bankrupt, was a debtor of the Tie Company, .which presented a claim against the bankrupt estate of 124,358; that for some years prior to the bankruptcy it had been engaged with Harrison in removing timber from certain lands of the Tie Company and converting it into" }, { "docid": "7129814", "title": "", "text": "bankrupt, and holds that such a quasi trust is not enforceable by the trustee. Indeed, it is my opinion that, if any such agreement existed in this case, the adjudication of the bankrupt within four months after such deposits were made freed the fund from such a trust, and gave the bank the right to a set-off. The view that it is the making of the deposit, and not the application of the same to the debt of the bank, that constitutes the preference, is borne out by the concluding part of the decision of the Supreme Court of the United States in the case of Mechanics’, etc., Bank v. Ernst, 231 U. S. 60, 34 Sup. Ct. 22, 58 L. Ed. 121. I am therefore of the opinion that this court has jurisdiction of the case. 2. This brings the court to the consideration of the other ground of the motion filed by the defendant to dismiss the plaintiff’s, petition, to wit, that same sets out no cause of action. This has given the court some concern. A careful reading of the plaintiff’s petition and of the decisions cited above will show that as a general proposition a bank has the right to apply the deposit of its customer upon any indebtedness due by him to the bank, and that it may do this by drawing a check in the name of the customer, or by charging off the deposit and applying it on the debt, or else may wait and allow the law to do the same thing by application of the rule of set-off which is allowed by section 68 of the Bankruptcy Act. Where a general deposit is made in a bank, the estate of the customer is not diminished, because he has the right to check upon such deposit. Therefore, if the deposits involved in this case were general deposits, which could be checked against by the bankrupts before the petition was filed against them, the plaintiff trustee would have no right to recover. The trustee alleges, however, in his petition, that the deposits so" }, { "docid": "2349716", "title": "", "text": "190 E. 726. The adjudication of the bankrupt occurred in the Northern district of California, on a petition filed September 7, 1928, and the order in question was sought in ancillary proceedings in the Utah district. The trustee was entitled to the same remedies as in the court of original jurisdiction. Lazarus v. Prentice, 234 U. S. 263, 34 S. Ct. 851, 58 L. Ed. 1305. The bankrupt had a deposit and checking account in the bank, the balance at the date of the filing of the petition being $198.54. The bankrupt deposited for sale with the bank fifty shares of stock in the Baneitaly Corporation, and they were sold for the bank’s account in New York, on September 5, 1928. The bankrupt on that date was entitled to eredit for the sale proceeds of $7,-243.23, in a correspondent bank. On various dates in June, August, and September, 1928, and prior to bankruptcy, the bankrupt indorsed to and deposited with the bank a check and six drafts, aggregating $2,896.08, and received credit therefor in the said deposit account. The trustee alleges the indorsements to the bank were made without restriction, and he was allowed to draw against the deposits at will, that the deposit slips showed the credits were provisional only until the proceeds were collected, and at the time the bankrupt was charged with these items on the collection ledger of the bank. The bank alleges likewise that the cheek and drafts were so indorsed, deposited, and charged, and further that the deposits were made upon the express understanding and condition that the credits were provisional or conditional only, and the bank at all times retained in its hands or control sufficient funds of the bankrupt to offset any provisional eredit given for the check and drafts, that the balance in the account was allowed to be reduced to $198.54, only because the Baneitaly stock had been sold and the proceeds credited, and it claims the right to set off against the proceeds and the funds of the bankrupt in its hands the debits of the dishonored check and" }, { "docid": "6392896", "title": "", "text": "actually destroyed, carted away, or converted by the appellant, it may be held for in •damages. But that valuation must be determined. No summary order directing appellants to pay the so-called value of these pieces of machinery can lawfully be entered, .and appellant Hoisting Company is only responsible, in a proper proceeding, for such property as cannot be traced, identified, and returned. First National Bank v. Chicago Title & Trust Co., 198 U. S. 280, 25 S. Ct. 693, 49 L. Ed. 1051; In re Rose Shoe Mfg. Co. (C. C. A.) 168 F. 39; Mason v. Wolkowich (C. C. A.) 150 F. 699, 10 L. R. A. (N. S.) 765; Hinds v. Moore (C. C. A.) 134 F. 221. Nor is May v. Henderson, 268 U. S. 111, 45 S. Ct. 456, 69 L. Ed. 870, to the contrary. There the bankrupt, within four months prior to bankruptcy, made a joint assignment for the benefit of creditors to Henderson and Seannell. At the time of the assignment, the assignor was indebted on a $15,000 promissory note to the Ft. Sutter National Bank, of which Henderson was president, and where the assignor carried a deposit account. At the direction of Henderson, the bank account, which had stood in -the assignor’s name, was transferred by the bank to the name of the assignee, and thereafter further deposits were made in the account prior to the bankruptcy. It appeared, also, that by the direction of Henderson, and prior to the bankruptcy, the bank debited the account from time to time with various sums as payments on account of the $15,000 note held by the bank. These credits amounted to $12,833.81. The court said that the assignees held the bankrupt’s property, including the bank account, for the benefit of all the creditors, and that, although .neither the bank nor the assignee had any specific money for the account of the bankrupt and his creditors, the assignees were the creditors of the bank, and the bank was their debtor, and it was this credit, a chose in action, which was held by the assignees" }, { "docid": "5988040", "title": "", "text": "would pay certain salary and pay roll checks of employés of Prince and checks issued to the Board of Trade Clearing House.” Pursuant to this agreement deposits were made by Prince, February 10th, 11th, and 14th, aggregating $3,079, but entered on the books of the bank February 14th. Checks made by Prince for the stipulated purposes were paid by the bank aggregating $2,506.46. On February 14th — at a conference and arrangement for closing out the entire business of the bankrupt, as hereinafter mentioned — the balance of the deposit account then standing in his favor, $575.79, was charged off by the bank and applied upon his indebtedness to the bank. Irrespective of the master’s findings, that the arrangement of February 10th was “calculated to keep Prince going,” was “primarily in the interest of the bank,” and intended for its benefit to the exclusion of other creditors, we are of opinion that the deposits left and made thereunder constituted special deposits, well within the above-mentioned rule, whereby title to the un expended fund remained in the bankrupt, so that the bank was without right, either to apply the residue upon his pre-existing indebtedness, or for allowance thereof against the trustee by way of set-off. Libby v. Hopkins, 104 U. S. 303, 306, 26 L. Ed. 769; Western Tie Co. v. Brown, 196 U. S..502, 507, 25 Sup. Ct. 339, 49 L. Ed. 571; Bank of Brodhead v. Smith, Trustee, supra. 2. The other charge of preference — in obtaining “margin certificates” for the aggregate sum o'f $4,250, on the day the petition in bankruptcy was filed, which were then credited upon the pre-existing indebtedness of the'bankrupt to the bank — involves like inquiry as to the nature of the certificate and deposit thereby certified, and consideration as well of the circumstances under which they were acquired by the bank. For both phases of the inquiry the facts in evidence are 'recited in the preceding statement for the purposes of this opinion, and the details do not require repetition, but the crucial facts may be'briefly stated. These certificates were issued by" }, { "docid": "5988041", "title": "", "text": "the bankrupt, so that the bank was without right, either to apply the residue upon his pre-existing indebtedness, or for allowance thereof against the trustee by way of set-off. Libby v. Hopkins, 104 U. S. 303, 306, 26 L. Ed. 769; Western Tie Co. v. Brown, 196 U. S..502, 507, 25 Sup. Ct. 339, 49 L. Ed. 571; Bank of Brodhead v. Smith, Trustee, supra. 2. The other charge of preference — in obtaining “margin certificates” for the aggregate sum o'f $4,250, on the day the petition in bankruptcy was filed, which were then credited upon the pre-existing indebtedness of the'bankrupt to the bank — involves like inquiry as to the nature of the certificate and deposit thereby certified, and consideration as well of the circumstances under which they were acquired by the bank. For both phases of the inquiry the facts in evidence are 'recited in the preceding statement for the purposes of this opinion, and the details do not require repetition, but the crucial facts may be'briefly stated. These certificates were issued by the bank, in its representative capacity as a “Board of Trade Depositary,” under the rules of the Board of Trade and its undertakings as such depository. Eacli certificate in controversy was issued to Prince, the bankrupt, upon his deposit of the amount thereof (either in money or by his check accepted as cash), for the purpose specified in the certificate, namely, as pledge or security on his Board of Trade contract with a second party named therein. Each certifies the amount deposited to be payable on its return indorsed by both parties named therein, or “on the order of the president of the Board of Trade,” as provided by the Board rules “under which the above-named deposit has been made,” and each bears designation as “not negotiable or transferable,” and is signed by the cashier of the bank. The purpose of each further appears in evidence, in accord with the recitals and plainly within the understanding of all the parties. Each of the outstanding certificates so issued to the bankrupt was on deposit with the" }, { "docid": "13728382", "title": "", "text": "prevent set-off in cases coming within the terms of section 68a. If this argument were to prevail, it would in cases of insolvency defeat the right of set-off recognized and enforced in the law, as every creditor of the bankrupt holding a claim against the estate subject to reduction to the full amount of a debt due the bankrupt receives a preference in the fact that to the extent of the set-off he is paid in full.” In the case of Studley v. Bank, 229 U. S. 523, 33 Sup. Ct. 806, 57 L,. Ed. 1313, the Collver Company had a general deposit and checking account with the Boylston Bank. It also owed the bank $25,000, represented by five notes maturing September 12th, 20th, 30th, October 3d, and October 14th. The first three notes were paid by check on the Boylston Bank, and the note due October 3d was charged by the bank to the company’s deposit account, and on the same day a renewal note for $2,500 was discounted; and the note falling due October 14th, was, on becoming due, also charged by the bank to the deposit account. The Collver Company continued to make deposits and draw checks, and on December 16, 1910, a petition in bankruptcy was filed against it. The trustee brought suit against the bank to recover $22,500, claiming that it had notice of the Collver Company’s insolvency, and that the payments were transfers which had operated to give the bank a preference. The bank claimed that the payments were simply set-offs upon the mutual account, and did not constitute a preference within the meaning of the Bankruptcy Act. The referee before whom the case was tried sustained the bank’s claim of set-off. This decision was affirmed both by the District Court and the Circuit Court of Appeals. The referee found as a fact that the bank had no1- reasonable cause to believe that a preference would result. The District Court made no findings of fact in this respect, nor did the Circuit Court of Appeals. A finding was made by the referee, the District" }, { "docid": "2349720", "title": "", "text": "of it, may be directed to surrender the property thus acquired by summary order of the Bankruptcy Court.” It was said the rule applies “where a bank secures payment of its debt by setting up its lienor right of counterclaim against a deposit account of the bankrupt or the bankrupt’s assignee, created subsequent to the filing of the petition”; and “the court has jurisdiction to inquire into the' claim for the purpose of ascertaining whether the summary remedy is an appropriate one. * 41 B ” There were citations to show an exception to the rule of requiring assignees to account, where there is an adverse claim arising before the filing of the petition. These principles suffice to rule this case. The bank claims that the right to charge the deposit in question with the dishonored cheek and drafts arose before bankruptcy, by virtue of the condition attached to the credits, the indorsement of them to the bank, and the charge made at the time in the collection register. We are not called upon to decide whether the bank may ultimately prevail. The whole question is whether, it asserts an adverse claim to the deposit, antedating bankruptcy. A like principle was involved in Re Gill, supra, where before bankruptcy a set-off was charged against a deposit by a bank. If the adverse claim arises thereafter, the deposit is recoverable by a trustee upon a summary proceeding. May v. Henderson, supra. The contention of the bank in this case reaches back to the date the cheek and drafts were indorsed, deposited, and charged to the bankrupt. There is no suggestion that the adverse claim is asserted in bad faith. We therefore should regard it as a real substantive controversy. The trustee insists the title to the paper deposited passed absolutely to the bank. City of Douglas v. Fed. Reserve Bank, 271 U. S. 489, 46 S. Ct. 554, 70 L. Ed. 1051; Burton v. United States, 196 U. S. 283, 25 S. Ct. 243, 49 L. Ed. 482. However, the question here is not whether this is so, but whether a" }, { "docid": "5988046", "title": "", "text": "trustee is expressly provided. Thus their appropriation by the bank for credit upon the indebtedness of the bankrupt was unauthorized. Is the bank, however, entitled to like benefit out of the transactions through set-off in its favor, as contended? We are of opinion that no such right exists under the terms and obvious purpose of section 68 of the act. The first clause (68a) cited in support thereof, provides only “for cases of mutual debts or mutual credits” between the estate and a creditor, wherein “the account shall be stated and one debt shall be set off against the other.” In our understanding of the authorities (as above stated), these special deposits and liabilities are not embraced in such provision for set-off. But, if it be assumed that the relation of debtor and creditor was created between the bank and the bankrupt at any stage, such relation must arise through the transaction which released the pledge, making the amount deposited payable to the bankrupt, whereby the bank (under the. assumption) becomes his debtor. Thus viewed, the claim of set-off must he rejected under the express limitations prescribed in clause “b” (2) of the section. Moreover, in Western Tie & Timber Co. v. Brown, 196 U. S. 502, 510, 25 Sup. Ct. 339, 49 L. Ed. 571, the lasRmentioned clause is construed to be applicable as well to a case of trust relation, and the opinion states that allowance of the claim of set-off “under the circumstances disclosed would violate the plain intendment of the inhibition” of that clause, i The transcript of testimony on the part of a witness (Wolf), received in evidence under objection, upon which error is assigned, does not enter into consideration for the purposes of the appeal, and tlie question raised as to its admissibility becomes immaterial. ■ The', decree of the District Court, therefore, is affirmed." }, { "docid": "1389893", "title": "", "text": "bankrupt for the checks in the usual course of business and then exercised its right to offset mutual demands preserved to it even after bankruptcy by Bankruptcy Act, § 68, 11 USCA § 108; and that in addition the checks were held for collection under a banker’s lien and by virtue of that lien the proceeds might be applied after knowledge of the customer’s insolvency. That a bank may thus set off its liability for deposits even when they were received after the bank knew of the depositor’s insolvency was held in New York County Nat. Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; but the deposits there received stood subject to cheek for several days and until bankruptcy occurred. In that interval one check was paid, and the court pointed out that there was nqthing to show that cheeks for the entire amount would not have been honored. The case is put upon the ground that by the deposit the bankrupt’s estate lost nothing in-that the bank’s obligation to pay the depositor’s checks was substituted in equal amount for what the bank got; that there was then no purpose to obtain a preference by set-off;, and the set-off subsequently made was expressly permitted by the Bankruptcy Act., This ruling was followed in Studley v. Boylston Nat. Bank, 229 U. S. 523, 33 S. Ct. 806, 808, 57 L. Ed. 1313, emphasis being laid on the fact that “the deposits were-honestly made, in due course of business, and without an intent to prefer the bank.” The application of the deposit account to the-old notes was made two months before bankruptcy, but was only partial, a substantial account remaining subject to check. These-cases indicate that, while the offset is allowed by the Act, if at the time the deposits are received there is not an intent in good faith to increase the cheeking account but to arrange for an offset, there is in truth not a. deposit but a payment which is a preference. Mechanics’ & Metals’ National Bank v. Ernst, 231 U. S." }, { "docid": "7129811", "title": "", "text": "view of the court that, if any preference was secured in this manner, it was made by the various deposits that were thus made by the bankrupts in the defendant bank, and not by the subsequent act of the bank in crediting these deposits, upon the filing of the petition in bankruptcy, upon the •indebtedness which it claimed against the bankrupts. These deposits thus made were made by the bankrupts by their consent, and by an arrangement entered into by them, and therefore constituted their act and deed, and if t(iey were preferential payments, within the meaning of the statute, they manifestly come under the provisions of section 60b of the Bankruptcy Act. The petition has enough in it to be sustained on this theory. It is well settled as a general proposition that a bank has the right to set off any indebtedness it may hold against the bankrupt against a general deposit standing to the credit of such bankrupt. This is expressly allowed by section 68 of the Bankruptcy Act. See Collier on Bankruptcy (10th Ed.) p. 976 et seq. Whether the bank charges off the deposit of its customer and applies it on the indebtedness which it holds against the customer, or whether it draws a check in the name of the customer covering his deposit and applies it as a credit on the indebtedness, or whether it does neither of these things, but appeals to the law to do the same thing in effect, makes no difference as a legal proposition. Toof v. City National Bank (C. C. A. 6th Circuit) 30 Am. Bankr. Rep. 79, 206 Fed. 250, 124 C. C. A. 118; Studley v. Boylston National Bank (U. S. Sup. Ct.) 30 Am. Bankr. R. 161, 229 U. S. 523, 33 Sup. Ct. 806, 57 L. Ed. 1313; Continental, etc., Savings Bank v. Chicago Title & Trust Co., 30 Am. Bankr. R. 624, 229 U. S. 435, 33 Sup. Ct. 829, 57 L. Ed. 1268; Chisholm v. First National Bank (Ill. Sup. Ct.) 35 Am. Bankr. Rep. 598, 269 Ill. 110, 109 N. E." }, { "docid": "13501235", "title": "", "text": "and (b) whether the ■bank’s appropriation of that balance, hidden in the account of the corporation, with knowledge of Baseman’s insolvency, effected a preference and a corresponding depletion of the bankrupt’s estate, depends upon whether or not the rule of New York County National Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380, applies. That decision holds that the balance of a regular bank account at the time of filing the petition is a debt due to the bankrupt from the bank, and in the absence of fraud or collusion between the bank and the bankrupt with the view, of creating a preferential transfer, the bank need not surrender such balance, but may set it off against notes of the bankrupt held by it. The theory of this decision is that a deposit of money to one’s credit in a bank does not operate to diminish the estate of the depositor, for where he parts with the money he creates at the same time, on the part of the bank, an obligation to pay the amount of the deposit as soon as the depositor may see fit to draw a check , against it, and that on this relation of debtor and creditor the bank may set off its debt to the depositor against the debt of the depositor to the bank and a preference is not thereby effected, although in such ease a bank creditor may have an advantage arising out of that relation greater than other creditors of the bankrupt who have no such relation. The learned trial judge thought, and we think, that the rule of New York County Nat. Bank v. Massey does not apply in this case for the two reasons he gave: “In the first place, the vital thing upon which that decision depends is missing here. The deposit of Baseman’s money in the corporation account did not create an obligation on the part of the bank to pay the amount of the deposit upon Baseman’s cheeks. This is true although it is agreed that the money was" } ]

[ { "docid": "22657684", "title": "", "text": "may impose death penalty based on his finding of aggravating factor because such factor is not element of offense to be determined by jury); Spaziano v. Florida, 468 U. S. 447, 465 (1984) (same). And we would also find it difficult to reconcile any such rule with our precedent holding that the senteneing-related circumstances of recidivism are not part of the definition of the offense for double jeopardy purposes. Graham, 224 U. S., at 623-624. For these reasons, we reject petitioner’s constitutional claim that his recidivism must be treated as an element of his offense. IV We mention one final point. Petitioner makes no separate, subsidiary, standard of proof claims with respect to his sentencing, perhaps because he admitted his recidivism at the time he pleaded guilty and would therefore find it difficult to show that the standard of proof could have made a difference to his ease. Accordingly, we express no view on whether some heightened standard of proof might apply to sentencing determinations that bear significantly on the severity of sentence. Cf. United States v. Watts, 519 U. S. 148, 156, and n. 2 (1997) (per curiam) (acknowledging, but not resolving, “divergence of opinion among the Circuits” as to proper standard for determining the existence of “relevant conduct” that would lead to an increase in sentence). The judgment of the Court of Appeals is Affirmed. Justice Scalia, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting. Because Hugo Roman Almendarez-Torres illegally reentered the United States after having been convicted of an aggravated felony, he was subject to a maximum possible sentence of 20 years’ imprisonment. See 8 U. S. C. § 1326(b)(2), Had he not been convicted of that felony, he would have been subject to a maximum of only two years. See 8 U. S. C. § 1326(a). The Court today holds that § 1326(b)(2) does not set forth a separate offense, and that conviction of a prior felony is merely a sentencing enhancement for the offense set forth in § 1326(a). This causes the Court to confront the difficult question whether the Constitution requires" } ]

[ { "docid": "16942479", "title": "", "text": "requires the court to resolve disputed issues of fact before sentencing, the court can adopt facts contained in the PSR without inquiry as long as the “facts had an adequate evidentiary basis and the defendant does not present rebuttal, evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364 (citations omitted). Although Tampico objected to a number of factual issues in the PSR, he did not introduce any rebuttal evidence. Thus, the district court did not err in accepting the PSR as evidence. III For the reasons stated above, Tampico’s conviction and sentence are AFFIRMED. Circuit Judge of the Eleventh Circuit, sitting by designation. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . For the purpose of Supreme Court review, Tampico also contends that the district court erred in enhancing his sentence under 18 U.S.C. § 2252A(b)(1) for a prior conviction relating to sexual abuse, because the prior conviction was not alleged in the indictment. Tampico claims that this is unconstitutional after the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which found that sentencing factors must be proved beyond a reasonable doubt. Tampico recognizes, however, that this issue is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). . Pattern of activity involving the sexual abuse or exploitation of a minor is defined as any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same or different victims; or (C) resulted in a conviction for such conduct. U.S.S.G. § 2G2.2, cmt. n.1. ." }, { "docid": "608444", "title": "", "text": "asserting conelusionally that his “injuries were caused by the unlawful policies and practices of the Shreveport Police Department.” Brown never identified any policy or custom, and, failing that first step, also failed to show a policymaker’s actual or constructive knowledge of the same and to link the constitutional violation to that policy or custom. His appellate brief is likewise deficient. The district court properly granted summary judgment. To support his claim that Chief White-horn failed to train his subordinate officers adequately, Brown had to show that: (1) the training policies were inadequate; (2) Chief Whitehorn was deliberately indifferent to the inadequacy; and (3) the inadequate policy directly caused Brown’s constitutional injury. Yet Brown sought to survive summary judgment with more eon-clusional allegations that fail to raise a genuine issue of material fact as to these elements. He claimed only that “Chief Whitehorn failed to train and supervise employees .of the Shreveport Police Department and plaintiff has suffered a deprivation of his constitutional rights[ ] as a result of it.” As regards the second required element, for example, the Supreme Court has indicated that proving deliberate indifference usually requires a plaintiff to identify a pattern of similar constitutional violations, but Brown did not point to any similar incidents, much less a pattern of them. For this reason alone, summary judgment was appropriate. III. CONCLUSION Because genuine issues of material fact preclude summary judgment for Officer Lynch on Lon Brown’s § 1983 claims of unlawful arrest and excessive force, we REVERSE the district court as to these claims and REMAND for further proceedings consistent with this opinion. We AFFIRM the court’s summary judgment with respect to Brown’s claims against Chief Whitehorn and the City of Shreveport. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . A high crime area, according to Officer Lynch and Cpl. Flores. . Brown was released on bond the next morning. The criminal charges against him were dismissed. . Because we construe all" }, { "docid": "17270819", "title": "", "text": "470, 475 (5th Cir.1997) (failure to exhaust); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324 (5th Cir.2009) (mootness). Essentially for the reasons stated by the district court in its well-reasoned 26 February 2008 opinion and detailed 14 November 2008 final judgment, we affirm. Because the Government no longer seeks to impose liability on Looney pursuant to 26 U.S.C. § 6672 and has been ordered to pay Looney $2,607, her § 6672 challenges are moot. Looney’s automatic-stay claims are without merit. Although referred to as “penalty” in the statute, the liability imposed pursuant to 26 U.S.C. § 6672 is, in essence, a tax. See, e.g., Cash v. United States, 961 F.2d 562, 565 (5th Cir.1992) (“Although denoted a penalty in the statute, the liability imposed by § 6672(a) is not penal in nature because it only recovers for the Government the same amount the employer was required to withhold and remit.”). Therefore, the liability imposed pursuant to 26 U.S.C. § 6672 is exempted from the automatic stay pursuant to 11 U.S.C. § 362(b)(9)(D) (“an assessment for any tax”). To the extent Looney’s automatic-stay claim may be construed to be based on 26 U.S.C. § 7433, she failed to exhaust her administrative remedies. See 26 U.S.C. § 7433(d)(1) (exhaustion requirement). Finally, Looney’s claim that the district court’s judgment violated the “separate document” rule pursuant to the Federal Rule of Civil Procedure 58(a) is without merit because, by entering final judgment, the district court properly complied with the rule. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "23084532", "title": "", "text": "imprisonment, for an alien to reenter the country without permission after having previously been removed; Section 1326(b)(l)-(2) provides that aliens whose prior removal followed a conviction of certain crimes may be imprisoned for substantially longer terms. In Almendarez-Torres v. United States, the Supreme Court held that § 1326(b) set forth sen- tenting factors rather than separate offenses, and that the statute was constitutional. See 523 U.S. 224, 235, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Raising an objection that was not raised below, Sarmiento-Funes contends that 8 U.S.C. § 1326(b) is unconstitutional, on its face and as applied, in light of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that facts that increase a sentence beyond the statutory maximum must as. a general matter be found by a jury. But Apprendi explicitly refrained from overruling Almendarez-Torres, and this circuit has consistently rejected Sarmiento-Funes’s position, stating that it is for the Supreme Court to overrule Almendarez-Torres. See, e.g., United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). Sarmiento-Funes concedes that the issue is foreclosed by circuit precedent, and he presents the issue solely to preserve it for possible further review. III.' CONCLUSION For the foregoing reasons, the defendant’s conviction is AFFIRMED and his sentence is VACATED. The case is REMANDED to the district court for resen-tencing. . The record in this case includes a state court criminal information, but the information only tracks the language of the statute. This case accordingly does not involve the question of the extent to which the sentencing court can use charging papers to narrow down a broad statute in order to determine more precisely the nature of the conduct of which the defendant was convicted. See, e.g., Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Calderon-Pena, 339 F.3d 320 (5th Cir.2003), vacated & reh’g granted, 362 F.3d 293 (5th Cir.2004). Further, although the Presentence Investigation Report (PSR) contains some additional details possibly gleaned from a police report (although their provenance" }, { "docid": "16336439", "title": "", "text": "jury could have viewed Crook’s actions after the equipment was sold as an indication that he never in good faith believed that he had the right to sell the equipment and give all the proceeds to the bank as he claimed. After the equipment was sold, Crook thwarted the FSA’s efforts to inspect the equipment by failing to respond to letters and calls from Thurman and by denying his farm manager the authority to conduct a full inspection with the FSA. A rational jury could have concluded that someone who believed in good faith that he had the right to sell the equipment would have simply told the FSA that he no longer possessed the equipment. Accordingly, we also will not disturb Crook’s convictions on counts three through eight. * sis si: For the foregoing reasons, we AFFIRM Crook’s convictions on all counts. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . 18 U.S.C. § 1014 (Supp. IV 1999) (current version at 18 U.S.C. § 1014 (Supp. IV 2011)). . Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2000, Pub.L. No. 106-78, 113 Stat. 1174. .United States v. Portillo-Munoz, 643 F.3d 437, 439 (5th Cir.2011) (citing United States v. Anderson, 559 F.3d 348, 352 (5th Cir.2009)). . U.S. Const, art. I, § 9, cl. 3; Cummings v. Missouri, 71 U.S. 277, 325-26, 4 Wall. 277, 18 L.Ed. 356 (1866). . 212 F.2d 907, 910-11 (5th Cir.1954). . Id. at 909-11. . Id. at 909 n. 2, 911 & n. 4. . Id. at 911. . See 7 U.S.C. § 6932 (authorizing the establishment of the Consolidated Farm Service Agency (CFSA)); Agency Name Change, 61 Fed.Reg. 1109 (Jan. 16, 1996) (to be codified at 7 C.F.R. ch. XVIII) (renaming the CFSA as the FSA). . See Burgess v. United States, 553 U.S. 124, 135-36, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) (declining to apply the rule of lenity were \"there [was] no" }, { "docid": "22722479", "title": "", "text": "did not raise this argument in the district court, review is limited to plain error. See Calverley, 37 F.3d at 162-64. Slaughter concedes that a two-level reduction in his offense level would not affect the applicable sentencing guideline range. If his offense level were reduced from 46 to 44, his offense level would still be treated as the maximum offense level of 43 pursuant to U.S.S.G. Ch.5, Pt. A, comment, (n.2). Because Slaughter concedes that the correction of this alleged error would not change the applicable guideline sentencing range, we decline to address the merits of this claim. See United States v. Lopez, 923 F.2d 47, 51 (5th Cir.1991). Slaughter argues that his conviction should be reversed because the jury was not required to find the quantity of drugs as an element of each of the charged offenses. Slaughter’s argument is foreclosed by this court’s precedent. See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.2000); United States v. Watch, 7 F.3d 422, 426 (5th Cir.1993). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "21604962", "title": "", "text": "it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless— (i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described; (ii) the court finds that there exists a mitigating circumstance of a land or to a degree, that— (I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking ac count of any amendments to such sentencing guidelines or policy statements by Congress; (II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and (III) should result in a sentence different from that described; or (iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance" }, { "docid": "8304485", "title": "", "text": "that Local 556 applied its established initiation fee policy arbitrarily or unequally. On its face, the Local 556 bylaws broadly require payment of a $100 initiation fee to become a member of the union — the bylaws themselves draw no distinctions between nonmembers who must pay this fee. The only exemptions from this requirement are those covered by the International Constitution, with regard to which Local 556 has no discretion. Thus, even if this Court were to conclude that exempting only certain former members from paying the initiation fee while not exempting others is a breach of the duty of fair representation, Local 556 is not the entity responsible for that breach. Summary judgment in favor of Local 556 was therefore appropriate. III. CONCLUSION • For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of Local 556 on all claims raised by the Plaintiffs-Appellants. Pursuant to 5th Cir. R, 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . AFNOs are not permitted to attend union meetings or participate in union elections but are still represented by Local 556. AFNOs are not considered union members and pay a fee lower than monthly due payments. . Martin and Starzinger filed an initial complaint on February 17, 2015. Pursuant to Federal Rule of Civil Procedure 15(a)(2), Fisher and Jackson were joined in the suit, and an amended complaint was filed by all four Plaintiff-Appellants on June 1, 2015. All of the Plaintiffs-Appellants claim a violation of the LMRDA, but only Fisher and Jackson claim retaliation and a breach of the duty of fair representation." }, { "docid": "22666701", "title": "", "text": "8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional on their face and as applied in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). According to Garza-Lopez, the “felony” and - “aggravated felony” provisions found in these sections are essential elements of the offense that must be pled in the indictment and proved beyond a reasonable doubt, not sentencing enhancement factors that a judge should determine. He notes that in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected this argument, holding that “Congress intended to set forth a sentencing factor in subsection (b)(2) [of 8 U.S.C. § 1326] and not a separate criminal offense.” Nevertheless, he argues that in light of Apprendi, there is reason to think that Almendarez-Torres was wrongly decided. While Garza-Lopez thinks there is reason to believe Almendarez-Torres was wrongly decided, he admits in his brief that his argument that 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional is foreclosed in this circuit by Almendarez-Torres. He then states that he is simply raising this argument on appeal to preserve it for possible review by the Supreme Court. Because Garza-Lopez made no objection to the alleged constitutional error below, we review it for plain error. United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). This court has held that “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ ....” Id. at 951. Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are unconstitutional after Apprendi fails in light of Almendarez-Torres and Fifth Circuit precedent. As Garza-Lopez readily admits, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Furthermore, Apprendi did not overrule Almendarez-Torres. Instead, the Supreme Court stated in Apprendi that “we need not revisit [Almendarez-Torres] for purposes of our decision today to tréat the case as a narrow exception to the general rule we recalled at the outset.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. This court has repeatedly rejected arguments like the" }, { "docid": "2104261", "title": "", "text": "32 (the level assigned to offenses involving at least one and a half kilograms, but less than five kilograms, of methamphetamine). See § 2Dl.l(c)(4). Therefore, based on adjustments made to Jones’ original base-offense level (two-point enhancement for use of a firearm, and three-point reduction for acceptance of responsibility), his total offense level became 31, with a corresponding sentencing range of 188-235 months. Accordingly, the court erred in determining Amendment 782 did not lower Jones’ sentencing range. In denying the motion, the court relied solely on its calculation of the offense level, and, therefore, did not consider whether the modification was warranted under the § 3553(a) factors, or the nature and seriousness of the danger to the community that may be posed by a reduction in the sentence. See United States v. Larry, 632 F.3d 933, 937 (5th Cir.2011). Accordingly, the court abused its discretion in denying the motion. See id. The order denying the motion to reduce Jones’ sentence pursuant to § 3582(c)(2) is VACATED, and this matter is REMANDED for the court’s reconsideration of the proper calculation of the Guidelines sentencing range in the light of Amendment 782, and also to determine whether the reduction is warranted in the light of the relevant sentencing factors. See 18 U.S.C § 3582(c); U.S.S.G. § 1B1.10, comment. (n.l(B)(i)-(ii)). VACATED and REMANDED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "5670275", "title": "", "text": "reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." }, { "docid": "17572751", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC.alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" }, { "docid": "21604961", "title": "", "text": "harm of the ongoing possession and distribution of the images. Cf. Paroline, 134 S.Ct. at 1722 (“Complications may arise in disaggregating losses sustained as a result of the initial physical abuse, but those questions may be set aside for present purposes.”). Several circuit courts have expounded on. this issue post-Paroline. See, e.g., United States v. Galan, 804 F.3d 1287, 1289-91 (9th Cir. 2015) (“[T]he principles set forth by the [Supreme] Court lead to the conclusion that [the defendant] should not be required to pay for losses caused by the original abuser’s actions.”); United States v. Dunn, 777 F.3d 1171, 1181-82 (10th Cir. 2015) (“We think it inconsistent with ‘the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct’ to hold [the defendant] accountable for those harms initially caused by [the victim’s] abuser.” (quoting Paroline, 134 S.Ct. at 1725)); see also United States v. Miner, 617 Fed.Appx. 102, 103 (2d Cir. 2015) (holding that the district court adequately disaggregated the victim’s losses). We have not yet directly addressed this issue and leave it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under" }, { "docid": "17572752", "title": "", "text": "supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." }, { "docid": "6562243", "title": "", "text": "PER CURIAM: Defendant-Appellant Andre McDaniels appeals the sentences imposed following his guilty-plea conviction on nine counts of tampering with a witness by corrupt persuasion. The district court sentenced him to 78 months of imprisonment on each count, with those sentences to run concurrently with each other but consecutively to federal sentences that McDaniels was already serving following prior convictions on charges of coercion and enticement. McDaniels argues that the sentences imposed by the district court were substantively unreasonable because the district court did not afford adequate weight to the applicable guidelines range — U.S.S.G. § 5G1.3 in particular — in its balancing of the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). He did not object on this basis in the district court, however, so plain error review applies. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). McDaniels does not attempt to show that the alleged error either “affected [his] substantial rights” or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,” however, so he cannot establish reversible plain error. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and citations omitted); see also United States v. Williams, 620 F.3d 483, 496 (5th Cir.2010). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "5670274", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" }, { "docid": "23446408", "title": "", "text": "commit clear error in determining the amount of cocaine to be used in sentencing Gibbs. CONCLUSION The convictions and sentences of all seven Appellants are hereby AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Cooks pled guilty to various drug charges arising from the conspiracy at issue in this case. . We note that the evidence suggests otherwise, as a co-conspirators' phone number was found on a caller ID in a bedroom in which Crawford was sleeping. . Apparently, the district court determined that McGee did not have standing to challenge the search of his wife’s purse and McGee’s brief does not challenge this ruling. . Despite McGee's suggestions to the contrary, the issue under Whren is whether there was an objective basis for the stop. It is irrelevant whether the officers’ motivation was to conduct a traffic stop in the hope of finding drugs. Whren, 517 U.S. at 813, 116 S.Ct. 1769 (foreclosing any argument that the Constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.) As long as the traffic stop is proper, it is irrelevant whether the officers actually issued a citation for driving with a suspended license. . We also note that the identification of the author/declarant is not always necessary for admission of a drug ledger as a co-conspirator’s statement. United States v. Fierro, 38 F.3d 761, 773 (5th Cir.1994). . Alternatively, we note that minor participant status need not be granted to Thomas since his sentence was only based on drug activity in which he was actually involved. See United. States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995) (holding that when sentence is based on activity in which defendant was actually involved, Sentencing Guidelines do not require reduction in base offense level even though defendant's activity in larger conspiracy may have been minor or minimal); United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir.l997)(holding that because only the" }, { "docid": "16942478", "title": "", "text": "The volume of pornographic images, the sexual molestation of numerous children, Tampico’s membership in NAMBLA, and his smudging the reputation of the Big Brothers program take this case outside the heartland of ordinary cases. Viewing the record as a whole, we cannot say that the district court’s departure was unreasonable. Thus, we find no reversible error in the district court’s upward departure from the sentencing guidelines. D Finally, Tampico claims the district court erred by accepting as evidence the portions of the PSR to which Tampico objected. He contends that, for the portions of the PSR to which he objected, the government should either have been required to introduce evidence to support those facts, or the court should not have considered those facts in enhancing Tampi-co’s sentence. Generally, “a PSR bears sufficient indi-cia of reliability, such that a sentencing judge may consider it as evidence in making the factual determinations required by the Sentencing Guidelines.” United States v. Huerta, 182 F.3d 361, 364 (5th Cir.1999). Although Rule 32 of the Federal Rules of Criminal Procedure requires the court to resolve disputed issues of fact before sentencing, the court can adopt facts contained in the PSR without inquiry as long as the “facts had an adequate evidentiary basis and the defendant does not present rebuttal, evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364 (citations omitted). Although Tampico objected to a number of factual issues in the PSR, he did not introduce any rebuttal evidence. Thus, the district court did not err in accepting the PSR as evidence. III For the reasons stated above, Tampico’s conviction and sentence are AFFIRMED. Circuit Judge of the Eleventh Circuit, sitting by designation. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . For the purpose of Supreme Court review, Tampico" }, { "docid": "16168517", "title": "", "text": "show that the ... sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.” Id. at 719. Here, the district court imposed a sentence at the bottom of the higher, incorrect guidelines range and stated that the guidelines range was “fair and reasonable.” We see nothing in the record to indicate that the district court’s reasoning in choosing a sentence would have been the same had it been confronted with a guidelines range of 97-121 months. The Government has not shown that Peralta’s sentence was not influenced by an erroneous calculation. See Ibarra-Luna, 628 F.3d at 717-19. III. CONCLUSION For the above reasons, we AFFIRM the convictions and sentences of Ceballos. We VACATE the sentences of Peralta and REMAND for re-sentencing in accordance with this opinion. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Although Lilliana is referred to as Ceballos’s wife, during her testimony she stated that they were not married but were \"just living together.” . The dissent apparently discounts Vasquez’s testimony because he did not testify as to Ceballos's specific statements and also parses through Vasquez’s testimony attempting to cast doubt as to Vasquez’s identification of Ceballos. Dissent at 2-4 & n. 2. Further, the dissent attempts to discredit Vasquez's testimony because he had been drinking alcohol when he observed Ceballos at the hotel. Id. at 4. \"It is not our role, however, under our standard of review for sufficiency of the evidence, to second-guess the determinations of the jury as to the credibility of the evidence.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir.2005). . The dissent would find the district court erred in applying a two-level enhancement for obstruction of justice. Dissent at 12-16. But the rationale and arguments advanced in the dissent to support such a view are not advanced in Ceballos's brief on appeal and therefore are not properly before us. As we view Ceballos’s brief, he is raising" }, { "docid": "12679807", "title": "", "text": "as 'it does not “(i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of the creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested parties.” Derouen v. Murray, 604 So.2d 1086, 1091 n. 2 (Miss. 1992) (quoting American Law Institute, Principles of Corporate Governance: Analysis and Recommendations § 7.01(d) (1992)) (internal quotations omitted). After briefing by the parties, the district court determined that because not all members of Equity were parties to the lawsuit, it could expose McLarty to multiple suits and result in inequitable distribution of recovery. The district court thus held that the Derouen exceptions did not apply and dismissed, without prejudice, Dalton’s suit for lack of standing. A careful review, of the record in this case, a full consideration of the parties’ briefs on appeal, and a thorough analysis of the district court’s ruling lead us to conclude that the district court’s judgment was correct. The district court properly determined that Dalton lacked standing under Mississippi law to pursue her direct claim against McLarty. Therefore, we AFFIRM the district court’s decision, essentially for the reasons articulated in its memorandum opinion and order. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir, R. 47.5.4." } ]

[ { "docid": "22602969", "title": "", "text": "FBI and IRS agents during the course of a government investigation at a time when Pirani, himself in' law enforcement, knew of the investigation. In these circumstances, the district court did not clearly err in finding that the indicthient established an offense more aptly covered by another guideline, invoking the cross reference in § 2F1.1, and sentencing Pirani in accordance with § 2J1.2. Accord United States v. Kurtz, 237 F.3d 154 (2d Cir.2001). B. An error by the trial court, even one affecting a constitutional right, is forfeited — that is, not preserved for appeal— “by the failure to make timely assertion of the right.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To preserve an error for appellate review, an objection must be timely and must “clearly stat[e] the grounds for the objection.” United States v. Williams, 994 F.2d 1287, 1294 (8th Cir.1993); Fed. R.Crim.P. 51(b). Errors not properly preserved are reviewed only for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure, as construed in' Olano and its progeny. The plain error principle applies even when, as here, the error results from ’ a change in the law that occurred while the case was pending on appeal. See Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Pirani argues that the plain error doctrine does not apply in this case because he preserved his Booker claim when h'e “raised numerous legal and factual objections in the district court to the Presen-tence Report, challenging the proposed application of various sentencing enhancements, including the cross reference.” However, these objections did not allege Booker errors. Booker changed the legal significance of a Guidelines enhancement — from mandatory to advisory — not whether the facts of a particular case make the enhancement applicable. In this regard, we agree with the First Circuit: “The argument that a Booker error occurred is preserved if the defendant below argued Apprendi or Blakely error or that the Guidelines were unconstitutional.” United States v. Antonakopoulos, 399 F.3d at 76; see United" } ]

[ { "docid": "2532594", "title": "", "text": "judicial finding of brandishing does not evade the requirements of the Fifth and Sixth Amendments. Congress simply took one factor that has always been considered by sentencing courts to bear on punishment and dictated the precise weight to be given that factor. That factor need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. Harris v. United States, 536 U.S. 545, 568, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (internal quotes and citation omitted). Accordingly, Keller’s challenge to this aspect of his sentence is unavailing. C. The enhancement for obstruction of justice is not supported by undisputed statements in the PSR. See Objection to PSR at 3 (“Defendant objects to any inference that he obstructed justice.”). Accordingly, we address Keller’s objection to this enhancement in light of Booker and United States v. Pirani, 406 F.3d 543 (8th Cir.2005) (en banc). Because Keller did not raise a constitutional challenge to the enhancement at sentencing, we conduct plain error review under the four-part test of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Pirani, 406 F.3d at 549. Pursuant to that test, before we can correct an error not raised at trial, “there must be (1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If all three conditions are met, we may remedy the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. The enhancement for obstruction of justice was erroneous in light of Booker because it was imposed on the basis of judge-found facts in a mandatory guidelines regime. See Pirani, 406 F.3d at 551. In these circumstances, the first two Olano factors are satisfied. See id. at 550. Whether the error affected Keller’s substantial rights is another matter. To satisfy this factor, “the defendant must show a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Id. at" }, { "docid": "1970815", "title": "", "text": "a Sixth Amendment violation because the findings were neither admitted by the defendant nor found by a jury beyond a reasonable doubt. Id. Following Blakely, and while this appeal was pending, the Court held in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that “the Sixth Amendment as construed in Blakely does apply to the [Federal] Sentencing Guidelines.” Booker, 125 S.Ct. at 746. Under Booker, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by ... a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 756. Although Harvey and Miller did object to the district court’s finding that the sophisticated means enhancement applied to them and that each defendant could be held responsible for the acts of the other, they did not raise a Sixth Amendment objection. Accordingly, our review is limited to determining whether Harvey and Miller’s sentences constitute plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005). To establish plain error, they must show that (1) there was an error; (2) the error was plain; and (3) the error affected substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if ... the error seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations omitted). Further, the defendant has the burden of proving plain error. United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In Pirani, we held that a Booker/Blakely error “affects substantial rights” if there is a reasonable probability that but for the error the defendant would have received a more favorable sentence. Pirani, 406 F.3d at 552. In this case, Harvey and Miller, like the defendant in Pirani, have not met their burden to show that there is a “reasonable probability” the district" }, { "docid": "23250429", "title": "", "text": "accompanying automobile theft or attempted automobile theft creates the risk of a violent confrontation with the vehicle’s owner or with law enforcement, places the criminal in control of a potentially deadly or dangerous weapon, in this case an F-350 dump truck, and makes it likely that “the thief may be pursued, or perceive a threat of pursuit, and drive recklessly, turning any pursuit into a high-speed chase with potential harm to innocent people, to the police, and to the thief himself.” Id. The offense of tampering by operation carries the same serious potential risks of injury to others that are identified with automobile theft in Sun Bear and Sprouse. Based both on the close connection between the Missouri offenses of tampering by operation and automobile theft and on our binding precedent, we reach the ineluctable conclusion that the risks associated with tampering by operation are sufficient to warrant classifying it as a violent felony. C. Sentencing Prior to oral arguments, Johnson requested leave to file supplemental briefs in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We held the motion in abeyance pending United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We now take this motion with the case. In light of Booker and our recent decision in United States v. Pirani, 406 F.3d 543 (8th Cir.2005), we deny the motion because Johnson cannot carry his burden of showing prejudice necessary to be entitled to plain-error relief. While Johnson objected to the district court’s finding that tampering by operation qualified as a violent felony under § 924(e), he did not object to his sentence on the basis of Apprendi, Blakely, or the constitutionality of the federal sentencing guidelines. See Pirani, 406 F.3d at 549. As a result, Johnson is only entitled to plain-error review. Id. We apply the plain-error test set forth in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The test has been stated as follows: before an appellate court can correct an error not raised at trial," }, { "docid": "10309491", "title": "", "text": "the court below. United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”) (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)). Accordingly, and in contrast to his objection to sentencing based on the improper imposition of a drug quantity enhancement, we review Macedo’s challenge to the obstruction of justice enhancement for plain error. United States v. Paladino, 401 F.3d 471, 481 (7th Cir.2005). “Under [the plain error] test, before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544). Enhancement of Macedo’s sentence based on facts not admitted by the defendant or proven to a jury beyond a reasonable doubt does, under the new Booker regime, constitute “error.” Furthermore, that error was plain. “ ‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Olano, 507 U.S. at 734, 113 S.Ct. 1770. At the time of Macedo’s sentencing, September 11, 2002, the Sixth Amendment and the reasoning of Apprendi were not yet understood to apply to the Federal Sentencing Guidelines. Cf. Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (issued on June 24, 2004); Booker, supra (issued on January 12, 2005). However, “where the law at the time" }, { "docid": "15657113", "title": "", "text": "against judicial fact-finding. See Booker, 125 S.Ct. at 756. In this case, the facts relied on by the district court as the grounds for the § 4B1.5(b)(l) enhancement were either admitted by Paz in letters sent prior to sentencing or deemed admitted when Paz withdrew his objection to the PSR’s recitation of the facts relating to the other instances of illegal sexual conduct. The § 4A1.3(a) upward departure was based on uncontested prior convictions and unob-jected-to facts relating to those convictions which were also in the PSR. Although the district court did not find facts in violation of the Sixth Amendment, Paz still could argue that the district court improperly applied the guidelines in a mandatory fashion. See United States v. Pirani, 406 F.3d 543, 551 (8th Cir.2005); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). At his sentencing, however, Paz did not object to his sentence on the basis of “Apprendi or Blakely error or [argue] that the Guidelines were unconstitutional.” Pirani, 406 F.3d at 549 (quoting United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005)). Because Paz failed to preserve for appellate review any challenge to the guidelines, we apply the plain-error test set forth in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Pirani, 406 F.3d at 549-50. The test has been stated as follows: before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). As in Pirani, the first two factors are satisfied because the district court erred in applying the guidelines in a mandatory fashion, and that error is plain at the time of appellate review. See Pirani, 406 F.3d at 550. To" }, { "docid": "18148199", "title": "", "text": "403 (2004) (declaring Washington’s sentencing system unconstitutional), Agboola argues the district court erred in increasing his base offense level based on evidence that was not charged in the indictment, found by a jury, nor admitted by him. Agboola also claims the district court erred by assessing a two-level enhancement for obstruction of justice and a ten-level enhancement for the amount of loss caused by his fraud. During the pendency of this appeal, the Supreme Court decided United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 749-57, 160 L.Ed.2d 621 (2005), which applied the holding of Blakely to the Guidelines. The Booker Court rendered the Guidelines “effectively advisory” by excising two provisions of the Sentencing Reform Act of 1984. Id. at 756-57. Under the advisory Guidelines system, the district court must “consider Guidelines ranges,” but it is permitted “to tailor the sentence in light of other statutory concerns as well.” Id. at 757 (citing 18 U.S.C. § 3553(a)). Courts of appeals now review the ultimate sentence imposed for unreasonableness. Id. at 765. Agboola did not assert a Sixth Amendment objection at his sentencing hearing. Thus, we review his sentence for plain error, United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc), a demanding standard not easily met, United States v. Rodriguez-Ceballos, 407 F.3d 937, 940 (8th Cir.2005) (citing United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004)). Under Federal Rule of Criminal Procedure 52(b), “a court of appeals [has] a limited power to correct errors that were forfeited because not timely raised in district court.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To show plain error, Agboola must demonstrate “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotations omitted) (alteration in original). If the defendant meets these three conditions, our court has discretion to remand for resentencing “if(4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”" }, { "docid": "14971578", "title": "", "text": "Rodriguez-Ceballos failed to raise such an issue during his initial sentencing. See United States v. Ross, 279 F.3d 600, 608 (8th Cir.2002) (reviewing de novo an issue a defendant on a second appeal raised for the first time because the Supreme Court “announced a new (although not watershed) rule of constitutional law” after the initial appeal 'but before the defendant’s resentencing). On the other hand, if we decide Rodriguez-Ceballos failed to preserve the Blakely/Booker issue, then we must review Rodriguez-Ceballos’s sentence for plain error, Pirani, 406 F.3d 548, 2005 WL 1039976, at *3 (failure to preserve issue mandates plain-error review), a standard “demanding strenuous exertion to get relief’ and one that “should not be too easy for defendants” to meet. United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). Because we conclude Rodriguez-Ceballos is entitled to resentencing regardless of the standard of review we employ, we have no need to decide whether Rodriguez-Ceballos preserved the Blakely/Booker issue before the district court. For purposes of this appeal, we assume Rodriguez-Ceballos failed to preserve the Blakely/Booker issue. Thus, we will conduct a plain-error analysis. Rodriguez-Ceballos bears the burden to prove plain error, which follows the four-part test enunciated in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error under the Olano test, RodriguezCeballos must establish “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (listing the conditions of the Olano plain-error test) (internal quotations omitted) (alteration in original). If Rodriguez-Ceballos establishes these three conditions, we may exercise our discretion to remand for resentencing “if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations omitted) (alteration in original). The first two Olano conditions are easily met in this case, because “[t]he district court (understandably) committed Booker error by applying the Guidelines as mandatory, and the error is plain, that is, clear or obvious, at this time.” Pirani, 406 F.3d at" }, { "docid": "23250430", "title": "", "text": "296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We held the motion in abeyance pending United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We now take this motion with the case. In light of Booker and our recent decision in United States v. Pirani, 406 F.3d 543 (8th Cir.2005), we deny the motion because Johnson cannot carry his burden of showing prejudice necessary to be entitled to plain-error relief. While Johnson objected to the district court’s finding that tampering by operation qualified as a violent felony under § 924(e), he did not object to his sentence on the basis of Apprendi, Blakely, or the constitutionality of the federal sentencing guidelines. See Pirani, 406 F.3d at 549. As a result, Johnson is only entitled to plain-error review. Id. We apply the plain-error test set forth in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The test has been stated as follows: before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). As in Pirani, the first two factors are satisfied because the district court committed error in applying the guidelines in a mandatory fashion, and the error is plain at the time of appellate review. See Pirani, 406 F.3d at 550. To satisfy the third Olano factor, Johnson must prove by a preponderance of the evidence that there exists “a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. We conclude that Johnson cannot demonstrate a reasonable probability that the district court would have imposed a more favorable sentence" }, { "docid": "5893511", "title": "", "text": "of the district court. IV. Prior to oral argument in this case, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and we granted leave to the parties to file supplemental briefs on the effect of Blakely on Monnier’s sentence. We now address Monnier’s sentencing arguments in the light of the post-Blakely decisions in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Pirani, 406 F.3d 543, (8th Cir.2005) (en banc). Because Monnier did not raise a Blakely or Booker challenge to the enhancement at sentencing, we review for plain error. Pirani, 406 F.3d at 549. Monnier challenges the two-level upward adjustment that he received for obstruction of justice. To resolve this challenge, we conduct plain error review under the four-part test of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Pursuant to that test, before we can correct an error not raised at trial, “there must be (1) error, (2) that is plain, and (3) that affects substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).” If all three conditions are met, we may remedy the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. The district court’s enhancement for obstruction of justice was erroneous in light of Booker because it was imposed on the basis of judge-found facts in a mandatory guidelines regime. In these circumstances, the first two Olano factors are satisfied. See Pirani, 406 F.3d at 550. Whether the error affected Monnier’s substantial rights is another matter. To satisfy this factor, “the defendant must show a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Id. at 552. Absent the upward adjustment, Monnier would have been sentenced at an offense level of 38, with a corresponding sentencing range of 292-365 months. With the adjustment, his offense level of 40 resulted in a range of" }, { "docid": "3828697", "title": "", "text": "in this instance, see also United States v. Ameline, 376 F.3d 967, 978 (9th Cir.2004) (reviewing for plain error a Sixth Amendment claim not raised at trial but raised on appeal pursuant to Blakely), just as we already have in similar contexts. See United States v. Stewart, 306 F.3d 295, 313 (6th Cir.2002) (holding that a constitutional challenge to a federal sentence, although not available at the time of sentencing because the Supreme Court’s decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) had not yet issued, must be reviewed for plain error). Under the plain error test, “before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also Cotton, 535 U.S. at 631, 122 S.Ct. 1781. If we find that “all three conditions are met, [we] may then exercise [our] discretion to notice a forfeited error, but only if [ ] the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770); Cotton, 535 U.S. at 631-32, 122 S.Ct. 1781. We do not find it difficult to conclude that Sham’s sentence was the result of plain error. To address the first two requirements of plain error review, we note that where, as is the case here, “the law at 'the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration ...Johnson, 520 U.S. at 468, 117 S.Ct. 1544. Accordingly, the imposition of a sentence in excess of the maximum authorized by the facts Sharn admitted was a plain error. See Booker, — U.S. at-, 125 S.Ct. at 756 (holding that such sentences violate" }, { "docid": "10035958", "title": "", "text": "with five years’ supervised release. On appeal, Cramer makes two arguments against the district court’s upward departure for inadequacy of criminal history category under U.S.S.G. § 4A1.3. First, he contends that the upward departure unfairly double counts when an enhancement based on § 4B1.5(a)’ has already been imposed. Second, he argues that there is insufficient evidence to support the district court’s upward departure. II. Discussion A. Booker Error Prior to oral argument, Cramer filed a letter pursuant to Fed. R.App. P. 28(j) arguing that his Sixth Amendment rights were violated under authority of the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The reasoning in Blakely was extended to the Federal Sentencing Guidelines. See United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Edüd 621 (2005) (Stevens, J.). Cramer, however, failed to make a Sixth Amendment argument to the district court. As such, we will review his Booker claim1 for plain error. See United States v. Pirani, 406 F.3d 543, 550-51 (8th Cir.2005) (en banc). To establish plain error, Cramer must show that (1) there was an error; (2) the error was plain; and (3) that the error affected 'substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Even when all three conditions are met, relief is discretionary with an appellate court and will be exercised only when “the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations omitted). In Pirani, we held that a Booker error is plain. Pirani, 406 F.3d at 552-53. However, we explained that the error only “affects substantial rights” if there is a reasonable probability that but for the error the defendant would have received a more favorable sentence. Id. Nothing in the record indicates that the district court would have imposed a more favorable sentence under an advisory system, and, thus, Cramer cannot show that the Booker error affected his substantial rights. Pirani, 406 F.3d at 547. B. Duplication of Sentencing Enhancements Cramer argues that the district" }, { "docid": "4508131", "title": "", "text": "United States v. Olano, 507 U.S. 725, 732—36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993): before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 550. (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). The burden is on Patterson to prove plain error. Id. at 550. “Appellate review under the plain-error doctrine, of course, is circumscribed and we exercise our power under Rule 52(b) sparingly.” Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Patterson first argues that his Sixth Amendment rights were violated when the District Court based his sentence, in part, on prior convictions that were not charged in the indictment or found by a jury. Patterson argues that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), ruling that a prior conviction is a sentencing factor for the court rather than a fact issue for the jury, has been undermined by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). To the contrary, the Supreme Court reaffirmed the Almendarez-Torres principle in Booker, 125 S.Ct. at 756, noting that the fact of “a prior conviction” need not be admitted by the defendant or proved to a jury beyond a reasonable doubt. See also Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 1264, 161 L.Ed.2d 205 (2005) (Thomas J., concurring) (noting that the Court has not reconsidered its decision in Almendarez-Torres). Patterson also ar gues that categorizing a prior conviction as a “violent felony” requires a factual finding beyond simply finding a prior conviction. But we previously have rejected the" }, { "docid": "1044832", "title": "", "text": "at 978-79 (holding that the “100 to 1” sentencing ratio for cocaine to-cocaine base is not irrational and does not violate due process); House, 939 F.2d at 664 (holding that the “100 to 1” ratio is not irrational and does not violate equal protection). This Court has recognized that the Sentencing Commission did not intend § 2D1.1 and § 2D1.11 to produce identical results in all circumstances. See United States v. Frazier, 408 F.3d 1102, 1112-13 (8th Cir.2005) (holding that the district court properly refused to apply a mitigating-role cap to a sentence calculated under § 2D1.1); Anton, 380 F.3d at 335-36 (holding that under the plain language of the guidelines, the “safety-valve reduction” of § 2D1.1 does not apply to sentences calculated under § 2D1.11). Because she failed to prove more than the disparate impact on her sentence, Ellefson fails to carry her burden of proving an irrational basis necessary to prevail on her due process and equal protection arguments. Second, in supplemental briefs Ellefson challenges the district court’s mandatory-application of the sentencing guidelines under United States v. Booker. Because El-lefson failed to argue Apprendi or Blakely error or that the guidelines were unconstitutional before the district court, we review for plain error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc). We evaluate plain error under the four-part test of United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), as stated in Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544,137 L.Ed.2d 718 (1997): [B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Following Pirani, Ellefson has established the first two parts of the Olano test. See Pirani, 406 F.3d at 550 (“The district court (understandably) committed Booker error by applying the Guidelines" }, { "docid": "5393791", "title": "", "text": "err in its application of § 2S1.1(a)(2), and the Government’s cross-appeal on this issue is, therefore, denied. b. Blakely I Booker Jessica argues that her sentence, pronounced under a mandatory application of the guidelines, is erroneous under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Before the district court, Jessica did not argue Apprendi or Blakely error with respect to her sentencing or that the guidelines were unconstitutional. Therefore, we review her sentence for plain error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc). We apply the plain-error test as set forth in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The test has been stated as follows: [B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (internal quotation omitted). As in Pirani, the first two factors are satisfied because the district court committed error in applying the guidelines in a mandatory fashion, and the error is plain at the time of appellate consideration. See Pirani, 406 F.3d at 550. To satisfy the third Olano factor, Jessica must demonstrate “a reasonable probability that [she] would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. We have reviewed the record, and we conclude that there is nothing to indicate a reasonable probability that Jessica would have received a more favorable sentence but for the Booker error. Accordingly, we affirm Jessica’s sentence. 2. Celia As with Jessica, the district court did not aggregate each layer of Celia’s money-laundering offense to determine the value of the laundered funds attributable to her" }, { "docid": "5893510", "title": "", "text": "being sworn before the jury, James decided, outside the presence of the jury, to invoke her Fifth Amendment right not to testify. The district court, over Monnier’s objection, refused to require James to invoke her right in the presence of the jury. Instead, the court informed the jury: “Ms. James was sworn in as a witness. She then had an opportunity to consult with her attorney and based on the advice of her attorney she has declined to testify, so she will not be testifying in this case.” Monnier argues that, despite the district court’s explanation, a mistrial was warranted because “[hjaving a witness sworn and then disappear leaves the jury wondering what she might have said.” We have held that “a defendant does not have the right to call a witness to the stand simply to force invocation of the right against self-incrimination in the presence of the jury.” United States v. Doddington, 822 F.2d 818, 822 (8th Cir.1987). This principle applies here, and we therefore find no abuse of discretion on the part of the district court. IV. Prior to oral argument in this case, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and we granted leave to the parties to file supplemental briefs on the effect of Blakely on Monnier’s sentence. We now address Monnier’s sentencing arguments in the light of the post-Blakely decisions in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Pirani, 406 F.3d 543, (8th Cir.2005) (en banc). Because Monnier did not raise a Blakely or Booker challenge to the enhancement at sentencing, we review for plain error. Pirani, 406 F.3d at 549. Monnier challenges the two-level upward adjustment that he received for obstruction of justice. To resolve this challenge, we conduct plain error review under the four-part test of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Pursuant to that test, before we can correct an error not raised at trial, “there must be (1) error, (2) that" }, { "docid": "23385333", "title": "", "text": "his participation in the murder’s cover-up would—if properly found—more than sufficiently demonstrate that the district court did not clearly err in applying the obstruction of justice enhancement. 2. Propriety of the Factual Findings—United States v. Booker However, as the repeated caveats above suggest, the ultimate propriety of applying the obstruction of justice enhancement here turns on the legitimacy of the method in which the facts supporting the enhancement were found. Toward this end, White argues that the district court’s application of the obstruction of justice enhancement to his sentence violated his rights as interpreted in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because he did not raise this challenge before the district court (nor any related challenge invoking the Sixth Amendment, the since decided Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)), we review for plain error. See United States v. Paladino, 401 F.3d 471, 481 (7th Cir.2005); United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “Under [the plain error] test, before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affects substantial rights.’ ” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544). We begin by assessing error. One error that White may argue is that the district court violated his Sixth Amendment right to a jury trial by increasing his sentence— via the obstruction of justice enhancement — based on facts neither admitted by himself nor proven to his jury beyond" }, { "docid": "14943816", "title": "", "text": "125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because he did not preserve this objection before the district court, we review his sentence for plain error. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “The plain error principle applies even when, as here, the error results from a change in the law that occurred while the case was pending on appeal.” United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005). He has the burden of proving plain error. Olano, 527 U.S. at 389, 119 S.Ct. 2090. Plain error review is subject to a four-part test. “[T]here must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). As in our en banc Pirani decision, it is obvious the first two plain error factors are met here. The district court committed Booker error by applying the guidelines as mandatory, and such error is clear and obvious at this time. See Pirani, at 550. He however, fails to satisfy the third plain error factor because he has not shown “a ‘reasonable probability,’ based on the record as a whole, that but for the error he would have received a more favorable sentence.” Id. at 552. Finck has pointed to nothing in the record to suggest a reasonable probability that the district court would have imposed a lesser sentence absent Booker error. Therefore, he has not carried his burden of demonstrating plain error under Olano, and we do not need to evaluate the fourth plain error factor. Contrary to the argument in his Supplemental Brief regarding plain error, the sentence itself is not illegal under the advisory guideline regime mandated by Booker. See Pirani, 406 F.3d at 553-54. IV. Finally, Finck argues that the district court’s use of the name “Glenn Benton" }, { "docid": "4508130", "title": "", "text": "Foster, 344 F.3d 799, 802 (8th Cir.2003), cert. denied, 541 U.S. 1031, 124 S.Ct. 2096, 158 L.Ed.2d 713 (2004); United States v. Rosso, 179 F.3d 1102, 1104 (8th Cir.1999); United States v. Simms, 18 F.3d 588, 593 (8th Cir.1994); United States v. Harris, 974 F.2d 84, 85 (8th Cir.1992). We are bound by this precedent and therefore hold that the instruction was proper. See Foster, 344 F.3d at 802; United States v. Olness, 9 F.3d 716, 717 (8th Cir.1993), cert. denied, 510 U.S. 1205, 114 S.Ct. 1326, 127 L.Ed.2d 674 (1994). II. Patterson’s challenges to his sentence are based on the Supreme Court’s recent decision in United States v. Booker, — U.S. --, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Patterson failed to make any sentencing objections in the District Court, we review his Booker claims for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc). Plain error review is governed by the four-part test set forth in United States v. Olano, 507 U.S. 725, 732—36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993): before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 550. (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). The burden is on Patterson to prove plain error. Id. at 550. “Appellate review under the plain-error doctrine, of course, is circumscribed and we exercise our power under Rule 52(b) sparingly.” Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Patterson first argues that his Sixth Amendment rights were violated when the District Court based his sentence, in part, on prior convictions that were not charged in the indictment or found by a" }, { "docid": "7465791", "title": "", "text": "Citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Plumman contends the district court’s sentencing findings, based on a preponderance of the evidence, which supported a force enhancement pursuant to section 2A3.1(b)(1), and a custody, care or supervision enhancement pursuant to section 2A3.1(b)(3)(A), coupled with the court’s acceptance of the Presentence Investigation Report’s finding that Plumman engaged in a pattern of sexual activity involving prohibited sexual conduct pursuant to section 4B1.5(b)(l), contravened his Sixth Amendment right to a jury trial. The government argues the force and custody enhancements are supported by sufficient evidence. The government further argues Plumman, at sentencing, failed to raise either a Fifth Amendment Due Process Clause challenge or a Sixth Amendment right to a jury trial challenge. The Supreme Court has held the mandatory Sentencing Guidelines scheme is unconstitutional. United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Guidelines are now “effectively advisory.” Id. at 743, 757. Although Plumman objected to the sentencing enhancements, his objections were not based on a Sixth Amendment challenge, nor did he make specific reference to Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or Blakely. Therefore, we review Plumman’s Booker challenge only for plain error. United States v. Pirani, 406 F.3d 543 (8th Cir.2005) (en banc). “Plain error is error that is ‘plain’ (that is, clear or obvious), ‘affects substantial rights’ (that is, prejudicial) and ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Rashid, 383 F.3d 769, 775 (8th Cir.2004) (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). See also Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The first two Olano factors are satisfied because “[t]he district court (understandably) committed Booker error by applying the Guidelines as mandatory, and the error is plain.” Pirani, 406 F.3d at 550. In determining whether plain error has affected substantial rights, we focus on “what sentence would have been imposed absent the error.”" }, { "docid": "3874229", "title": "", "text": "May’s need for a substance abuse treatment program. See § 3553(a)(1), (2)(A), & (2)(D). Finally, the district court considered the need for the sentence it imposed to afford adequate deterrence and to protect the public from May committing further crimes. See § 3553(a)(1)(B), (C). The district court’s departure and May’s resulting sentence were not unreasonable in light of the section 3553(a) factors. II. May argues in a supplemental brief that the district court’s sentence violates his constitutional rights because it was based in part on judicial fact-finding. May filed his supplemental brief after the Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). May did not raise the issue in any manner before the district court. A Booker argument is not preserved unless “the defendant below argued Apprendi or Blakely error or that the Guidelines were unconstitutional.” United States v. Pirani, 406 F.3d 543, 551 (8th Cir.2005) (quoting United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005)). May concedes that plain error review is appropriate. Id. The plain error standard requires “(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If those conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if “(4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. It is the defendant’s burden to prove plain error occurred. Pirani, 406 F.3d at 550. The defendant must first show that an error occurred that is plainly contrary to the law at the time of appeal. Id.; see Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (“[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be ‘plain’ at the time of appellate consideration.”). With respect to imposing a sentence under a" } ]

[ { "docid": "22774728", "title": "", "text": "Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980), presaged our ruling in this case. In Park Motor Mart, we explored the effect of failure to object to a magistrate’s report and recommendation: Turning to the general purpose of the statute, we see no reason for implying an obligation to review when a review has not been requested. The purpose of the Federal Magistrates Act is to relieve courts of unnecessary work. Since magistrates are not Article III judges, it is necessary to provide for a redetermination by the court, if requested, of matters falling within subsection (b)(1)(B). To require it if not requested would defeat the main purpose of the Act. It is not burdensome on the parties to require such a request. We conclude that 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. Id. at 605. The footnote reads: Nor can it be thought that a party could skip the district court and, in effect, appeal directly to us. We have no jurisdiction to review the determinations of magistrates. Whitehead v. Califano, 6 Cir., 1979, 596 F.2d 1315, 1319 n.3; Sick v. City of Buffalo, 2 Cir., 1978, 574 F.2d 689; United States v. Reeds, 7 Cir., 1977, 552 F.2d 170. Id. at 605 n.l. The Sixth Circuit applied this reasoning in a criminal case, holding “that a party shall file objections with the district court or else waive right to appeal.” United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). See also Nettles v. Wainwright, 656 F.2d 986, 987 (5th Cir. 1981); United States v. Lewis, 621 F.2d 1382, 1386 (5th Cir. 1980); John B. Hull, Inc. v. Waterbury Petroleum Prod., Inc., 588 F.2d 24, 29-30 (2d Cir. 1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979). In the case at bar, not only was there no objection to the magistrate’s report, but defense counsel moved that it be adopted. And the court, noting first that no objections had been" } ]

[ { "docid": "113033", "title": "", "text": "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, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998). . There is no support for the plaintiffs’ argument that federal law, rather than state law, controls in this instance. The case law is clear that credit transactions within Massachusetts that are subject to the CCCDA are exempted from various provisions of TILA, including § 1635 regarding the right to rescind. See Fidler v. Central Coop. Bank, 226 B.R. 734, 736 (Bankr.D.Mass.1998). Accordingly, where, as here, the subject loans were secured by the borrowers' Massachusetts residences, the CCCDA, and not TILA, governs the proposed class members' rescission claims. Id.; see also Belini v. Washington Mutual Bank, 412 F.3d 17, 26-27 (1st Cir.2005) (because of the Massachusetts exemption, disclosure requirements and mechanics of rescission are governed by state law, not TILA); Desrosiers v. Transanierica Fin. Corp., 212 B.R. 716, 722 n. 6 (Bankr.D.Mass.1997)" }, { "docid": "7665119", "title": "", "text": "correct. Q. And you testified that these amendments are sent along with her statement; is that right? A. Yes. (Id. at 14.) . Plaintiff makes no argument that the \"opt out” notification procedure MBNA followed did not comply with federal or Delaware law. . This allegation has not been changed in Plaintiffs second amended complaint. (See Second Amended Complaint ¶ 18.) . 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 after being served with a copy thereof." }, { "docid": "18918582", "title": "", "text": "Crotched Mountain Rehabilitation Center, Inc., 31 F.3d 9, 14 (1st Cir.1994) (quoting Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st Cir.1988). See also Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (Plaintiff \"may not rest upon mere allegations; [he] must set forth specific facts demonstrating that there is no genuine issue for trial.”) . A continuing violation may also be shown if there is a systemic policy of discrimination. Jensen, 912 F.2d at 523. No systemic policy, however, has been claimed in this case. . 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); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); and Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). A party may respond to another party's objections within ten (10) days after being served with a copy thereof." }, { "docid": "18238261", "title": "", "text": "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 v. Am, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998)." }, { "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": "5494261", "title": "", "text": "matter jurisdiction of the claim because that claim was one which is within the exclusive jurisdiction of the federal courts—e.g., federal antitrust claims, etc. The legislative history—and the limited scope of that amendment—is discussed in full detail by Professor Moore. 1A Moore's Federal Practice ¶ 0.153[3.—3], pp. 61-62. . 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 par ty 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. 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); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also, Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)." }, { "docid": "20633149", "title": "", "text": "motion. . This case does not involve a situation where ADP is being challenged for failing to make a disclosure which was necessary to prevent a partial disclosure from being misleading. See Nota, 45 Mass.App.Ct. at 19, 694 N.E.2d at 404. While under such circumstances a distinct relationship of trust or confidence may not be necessary, that is not the situation here. . The unpublished decision of Infra-Metals Co. v. Topper & Griggs Group, Inc., No. Civ. A. 3:05-CV559, 2005 WL 3211385, at *1 (D.Conn. Nov.30, 2005), relied on by JSB not only relies on the same standard as the above-cited cases, but also notes that to the extent that successor liability is based on a fraud theory, it must be pleaded with the specificity required by Fed.R.Civ.P. 9(b). Id. at n. 4. . 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. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998)." }, { "docid": "2586220", "title": "", "text": "Process Violation,) in favor of all the Defendants on Count 7 (Violation of MCRA), and in favor of defendant Grossi on Count 9 (Intentional Infliction of Emotional Distress). The Court FURTHER RECOMMENDS that Count 3 against defendants Maloney and Pepe be DISMISSED and that Counts 5, 6, 7 and 9 against defendant Therien be DISMISSED as unopposed by the Plaintiff. The Court RECOMMENDS that the motion be otherwise DENIED. V. 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 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 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 (1 Cir., 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1 Cir., 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1 Cir., 1983); United States v. Vega, 678 F.2d 376, 378-379 (1 Cir., 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1 Cir., 1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). February 10, 2005. . The complaint sued the various officials in their official and individual capacities. Pursuant to the District Court's Order (# 36) dated June 27, 2003, the suit continues as one against the officials in their individual capacities only. Named as defendants are: Michael T. Maloney, at all relevant times the Commissioner of the Department of Correction for the Commonwealth of Massachusetts; Peter Pepe, Jr., formerly the Superintendent of Cedar Junction; Peter Allen, former Superintendent of Cedar Junction; William Grossi, Lieutenant in Cedar Junction’s Inner Perimeter Security Unit (\"IPS”); Ernest J. Therien, disciplinary officer at Cedar Junction; William Shugrue and Jeffrey" }, { "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": "20566242", "title": "", "text": "the end-user consumer claims. As detailed above, however, plaintiffs have failed to establish that they are entitled to subrogation. . 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 objec tion 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. Am, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "16746162", "title": "", "text": "continued viability of the loan program. See generally Braman v. United Student Aid Funds, Inc., 94 F.3d 1260, 1264-66 (9th Cir.1996) (a major purpose of the HEA is to stabilize student loan program and cut government losses due to default), cert. denied, 521 U.S. 1106, 117 S.Ct. 2484, 138 L.Ed.2d 992 (1997). . 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 Services, 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. Am, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Went-worth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "2777191", "title": "", "text": "(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. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998)." }, { "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": "113038", "title": "", "text": "the plaintiffs had not been fully reimbursed for prepayment penalties and interest charges that they had incurred. See id. The McIntosh court concluded that a claim for rescission remained a permissible means of attempting to recover these costs even though the plaintiffs had paid off their loan. Id. Thus, the plaintiffs' right to rescind following payoff of the loan was in no way dependent upon a claim for damages pursuant to 15 U.S.C. § 1640. Here, the plaintiffs are seeking reimbursement of interest and finance charges through rescission. See Pl.’s Mem. at 5; Def.'s Mem. at 6. Under McIntosh, this is permissible whether or not the subject loans have been paid off. . Nothing herein or in the original R & R addresses the merits of the plaintiffs’ claims. . 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. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "1461706", "title": "", "text": "to the extent that Count V seeks to state a claim premised on Mass.Gen. L. c. 110A § 101. I FURTHER RECOMMEND that in all other respects, Defendants’ Motion to Dismiss and, in the Alternative, for a More Definite Statement (# 5) be DENIED. VI. Review by the District Judge The parties are hereby advised that pursuant to Rule 72, any party who objects to these 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 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 (1 Cir., 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1 Cir., 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1 Cir., 1983); United States v. Vega, 678 F.2d 376, 378-379 (1 Cir., 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1 Cir., 1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). . The Court is mindful that the factual circumstances presented in the federal cases cited are often indistinguishable from the ones presented here, and notes that the Patsos Court acknowledged this line of cases. See Patsos, 433 Mass. at 330-331, 741 N.E.2d at 848 (collecting cases). It is an open question whether the outcome in those cases would have been different under the considerations laid out in Patsos. . Patsos sought to strike a balance between \"the need to protect customers who relinquish control of their brokerage accounts, and the need to ensure that securities brokers-particularly those who merely execute purchase and sell orders for customers-not become insurers of their customers’ investments.\" Id. at 336, 741 N.E.2d at 851. Rather, Patsos assigns “general fiduciary duties only" }, { "docid": "20780481", "title": "", "text": "pleading requirements of Local Rule 56.1, or defendants' request for additional discoveiy under Fed.R.Civ.P. 56(f). This court does, however, acknowledge the merits of the defendants’ position. . Due to these disputed facts, this court has denied plaintiff's \"Motion to Deem Facts Established et al” (Docket # 44) by which plaintiff is seeking to have this court rule that her ownership of the notes has been established. In the same motion, the plaintiff is seeking to have this court enter an order warning the defendants that they will be sanctioned if they fail to prove any claim and any and all defenses they have raised. Such a warning is not warranted and will not be issued. .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 Massachu setts, 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 (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, 378-379 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4-5 (1st Cir.1998)." }, { "docid": "4855448", "title": "", "text": "Plaintiffs’ own documents undercut the claim that the statements made by Defendants were false, the Plaintiffs facially fail to meet one of the elements required for slander of title, and so failing to state a claim. Counts VI-VIII should be dismissed. V. Conclusion For all the reasons stated, I RECOMMEND that Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment, on Behalf of Mortgage Electronic Registration Systems, Inc., and Merscorp (# 11), and Motion to Dismiss the First Amended Complaint on Behalf of HSBC Bank, National Association; HSBC Bank USA, National Association as Trustee for Mortgage Pass-Through Certificates 2007-AB1; and HSBC Bank USA, National Association as Trustee for Deutsche Alt-B Securities Mortgage Loan Trust, Series 2007-AB1, Mortgage Pass-through Certificates 2007-AB1 Pursuant to Fed.R.Civ.P. Rules 12(b)(1) and 12(b)(6)(# 24), be ALLOWED and that Final Judgment enter dismissing the above-styled cause. VI. Review by the District Judge The parties are hereby advised that any party who objects to these 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 (1 Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1 Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1 Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1 Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1 Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). September 9, 2011 . The civil action is entitled Marilene O. Rosa and Adamado DeSouza Oliveira v. Mortgage Eledronic Registration Systems, et al., Case No. 10 MISC 442661. (#11 at 1, Exhibit 1) . Docket # 24 supersedes HSBC's" }, { "docid": "21149525", "title": "", "text": "reason for the leave becomes known. Upon receipt of the requisite information from the employee or the medical certification which confirms the leave is for an FMLA reason, the preliminary designation becomes final.” 29 C.F.R. § 825.208(e)(2). . 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 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 after being served with a copy thereof." }, { "docid": "4855449", "title": "", "text": "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 (1 Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1 Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1 Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1 Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1 Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). September 9, 2011 . The civil action is entitled Marilene O. Rosa and Adamado DeSouza Oliveira v. Mortgage Eledronic Registration Systems, et al., Case No. 10 MISC 442661. (#11 at 1, Exhibit 1) . Docket # 24 supersedes HSBC's previously filed Motion to Dismiss (# 9). The previous Motion to Dismiss (# 9) is therefore moot; HSBC acknowledged as much as oral argument. . The Court declines to convert this to a motion for summary judgment and will treat it only as a motion to dismiss. Because the first amended complaint has attached the pertinent documents, or has sufficiently referenced other documents in the record, the Court may consider them in deciding the motion to dismiss. See Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir.), cert. denied, 555 U.S. 995, 129 S.Ct 500, 172 L.Ed.2d 359 (2008). . Plaintiffs allege that Pinnacle was dissolved on January 1, 2008, but it is clear from the Articles of Dissolution, attached as Exhibit 3 to the Complaint, that the Articles were filed on January 11, 2008. . The Defendants have also raised the question of the Plaintiffs’ standing to challenge the validity of the assignment at issue here. Under Massachusetts law, ”[a]ny effort to foreclose by a party lacking 'jurisdiction and authority’" }, { "docid": "6669743", "title": "", "text": "the position formerly taken by him.”) (internal citation omitted). However, the parties have not addressed the issue of judicial estop-pel, and Mr. Herrmann's relationship with Schmid would need to be such that he was bound by representations to the court made on behalf of Schmid rather than on behalf of Mr. Herrmann personally. Consequently, this issue will not be addressed further herein. . 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.l983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.l999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." } ]

[ { "docid": "22476101", "title": "", "text": "769 F.2d at 1320. We also specifically noted that interrogation was not initiated by law enforcement but that the suspect “responded to the request of his own free will.” Helmel, 769 F.2d at 1320. After affirmatively finding the presence of all three mitigating factors, we further found the absence of any coercive factors. No strong arm tactics were used during the forty-five minute questioning and the fact that one agent answered all incoming calls during the questioning did not create a police dominated, coercive environment. Helmel, 769 F.2d at 1320. The sixth factor has no application here in light of the fact that the suspect was specifically informed that no arrest was contemplated at that time. In reaching the same conclusion in Jones as we did in Helmel we addressed the first two mitigating factors and found it significant that Jones had been “informed that she was not under arrest and that she need not answer any questions ... [and] had not been subject to police escort.” Jones, 630 F.2d at 616. With respect to the third factor, Jones invited officers into her house and voluntarily submitted to questioning after being informed that she was free to refuse. Jones, 630 F.2d at 615. We found no evidence in the record of the use of coercive factors or strong arm tactics, and specifically found that there had been no “commands by interrogating agents intended to dictate the course of conduct followed by the defendant” or any other evidence of a police controlled environment. Jones, 630 F.2d at 616. As in Helmel the sixth factor has no application here. Applying the same analysis in Carter we came to the opposite conclusion as in Jones and Helmel. In Carter there were no mitigating factors present. Carter “was not told he was free to leave or that he did not have to answer questions.” Carter, 884 F.2d at 368. He was not permitted unrestrained freedom of action during the interview, but instead was told to remain seated and to “just stay here.” Carter, 884 F.2d at 368. The authorities, rather than Carter, initiated the" } ]

[ { "docid": "7465770", "title": "", "text": "and its legal conclusions are reviewed de novo. United States v. Sheikh, 367 F.3d 756, 762 (8th Cir.2004). 1. Fifth Amendment Claim On direct appeal, we conduct an independent review of “in custody” determinations to decide whether Fifth Amendment Miranda warnings were required. Id. In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990), we outlined general indicia of custody to assist fact finders in determining whether a suspect is in custody: (1) whether law enforcement informed the suspect the questioning was voluntary, and the suspect was free to leave and was not under arrest; (2) whether the suspect had unrestrained freedom of movement during the questioning; (3) whether the suspect contacted the authorities or voluntarily agreed to official requests to answer questions; (4) whether law enforcement employed strong-arm tactics or deceptive stratagems during questioning; (5) whether the atmosphere of the interrogation was police dominated; or (6) whether law enforcement placed the suspect under arrest at the end of questioning. The district court determined Plumman was not in custody on April 18, 2003, and Miranda warnings were not required. After reviewing the suppression transcript and the Report and Recommendation, we conclude the magistrate judge correctly applied the Griffin indicia in determining Plumman was not in custody. Agent McGrane told Plumman in his home the agents were interested in talking with Plumman about K.P. and P.P., Plumman was not under arrest, and Plumman would not be arrested after the interview. Once Plumman was seated in the front passenger seat of Agent McGrane’s vehicle, Agent McGrane told Plumman he did not have to talk if he did not want to, and if he decided to talk with the agents, he could stop talking at anytime and exit the truck. Despite these warnings, Plumman agreed to talk with the agents and, throughout the interview, Plumman never refused to answer questions or requested to leave the vehicle. The magistrate judge noted Agent McGrane did not employ strong-arm or deceptive tactics during the interview, but instead used permissible small talk and rapport-building techniques to make Plum-man more comfortable with the difficult subject matter and" }, { "docid": "14224828", "title": "", "text": "he is free to leave during police questioning is a strong indication he was in custody — does not necessarily follow, because “the touchstone of our inquiry remains whether [Laurita] was restrained as though he were under formal arrest.” United States v. Lowen, 647 F.3d 863, 868 (8th Cir.2011); accord Beheler, 463 U.S. at 1125, 103 S.Ct. 3517. Next, the district court erred when it found “Laurita’s freedom of movement was significantly constrained.” None of the actions undertaken by- Special Agent Howley or King restrained Laurita’s freedom of movement to “the degree associated with formal • arrest.” United States v. Williams, 760 F.3d 811, 815 (8th Cir.2014). Before, during, and after the interview, neither Special Agent Howley nor King handcuffed, physically or verbally restrained, or otherwise confined Laurita. Cf. United States v. Cowan, 674 F.3d 947, 957 (8th Cir.2012) (concluding where a suspect “was detained, handcuffed, and patted down while [a detective] questioned him[,]” the suspect was in. custody “because a reasonable person in [his] position would not have felt free to end the questioning and leave”). Laurita never asked to rnove around in the room or leave during the course of the interview. Laurita and Special Agent Howley disagreed over where Laurita was sitting inside the conference room, but Laurita had a clear pathway to the door, and, although the door was closed, there is no evidence it was locked. Considering the brief duration of the questioning and the absence of any evidence of restraint, we have no difficulty concluding Laurita “possessed unrestrained freedom of movement” during the interview. Griffin, 922 F.2d at 1349. While the investigators initiated contact with Laurita, the record fully supports the magistrate judge’s finding that “Laurita voluntarily agreed to speak with Special Agent Howley.” See id. From Laurita’s own account, Special Agent Howley was conversational and nice, and Laurita seems to have reciprocated by willingly explaining how he accessed child pornography despite using a computer that was incompatible with Tor. Cf. United States v. Axsom, 289 F.3d 496, 501-02 (8th Cir.2002) (deciding that because the suspect “was extremely friendly and cooperative during the interview”" }, { "docid": "21657735", "title": "", "text": "in this case do not demonstrate that Parker’s freedom of action was curtailed to such a degree. The district court found that Parker was told she was not under arrest. She was not handcuffed or otherwise restrained, and the agents did not draw their weapons in her presence. She was also in her own home during the questioning, and one of her relatives, at the relative’s request, entered the interview room on two occasions during the questioning. She was not forced to enter the room with the officers, and she was never told that she was not free to leave. The fact that one of the agents testified at the suppression hearing that they likely would have arrested Parker had she attempted to end the interview and leave the house does not successfully undercut the holding of the district court that Parker was not under the functional equivalent of arrest during questioning. Custody determinations do not depend on the subjective views of either the interrogating law enforcement officers or of the person being questioned, but depend instead the objective circumstances of the interrogation. Stansbury v. California, 511 U.S. at 323, 114 S.Ct. 1526. The agent’s unarticulated views at the time Parker was being questioned is of little weight. The relevant inquiry is how a reasonable man would have understood the suspect’s position at the time. Berkemer v. McCarty, 468 U.S. at 442, 104 S.Ct. 3138. Thus, we conclude that the district court did not err when it declined to suppress Parker’s statements for failure to administer Miranda warnings. B. Parker next maintains that the district court committed reversible error when it ruled inadmissible evidence that agents handcuffed her grandmother in the home’s driveway after the agents had apparently pointed their guns at her. Parker also maintains that the jury should have been able to hear her grandmother’s testimony that agents, without consent, took her house keys for the purpose of breaking into the house. Parker argues this information would have been relevant, under Fed.R.Evid. 401, to the voluntariness of her confession in that it would have shed light on whether" }, { "docid": "22427530", "title": "", "text": "he “wasn’t real thrilled about it,” and that during the interview he “figured [he] was going to jail, [so] it didn’t make any difference one way or another” whether he spoke to the Agents. (Supp. J.A. 80.) The magistrate judge recommended denying the motion to suppress. He concluded the interview “was consensual and was not custodial in nature,” and he credited Agent Chance and Shumaker’s testimony that they informed Hargrove “he was not under arrest and ... was free to go at any time during the interview,” and that Hargrove appeared “extremely relaxed and cooperative during the interview and seemed to enjoy talking with the agents.” (J.A. 157.) The magistrate further noted that the interview took place in Hargrove’s kitchen “in a comfortable atmosphere,” and that no evidence of coercion or improper inducement existed. (J.A. 157.) Hargrove objected to the magistrate judge’s recommendation, contending that the agents were not there simply to conduct the search because they had surrounded the house before entering, which would not have been necessary if they did not want to keep everyone inside the residence, and that during the interview Agent Shumaker “block[ed] [his] entry to his living room” and Agent Chance “positioned himself between [Hargrove] and the back door.” The district court adopted the magistrate judge’s recommendation. The court observed that Hargrove’s argument “that he did not feel free to leave is not dispositive” because “‘[cjustody determinations do not depend on the subjective views of either the interrogating law enforcement officers or the person being questioned, but depend instead [on] the objective circumstances of the interrogation.’ ” Concluding, the district court found that [g]iven the testimony of Agents Chance and Shumaker, and defendant’s own testimony, that defendant was not handcuffed at the time his statements were made; that the agents did not draw their weapons in the kitchen; that defendant was told he was not under arrest and that he was free to leave; and that the conversation that took place between the defendant and the agents was amicable and nonthreatening in tone, the [c]ourt finds that defendant was not in custody at the" }, { "docid": "21750291", "title": "", "text": "that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning. Id. at 1349. The first three indicia are mitigating factors which, if present, mitigate against the existence of custody at the time of questioning. Conversely, the last three in-dicia are aggravating factors which, if present, aggravate the existence of custody. We have emphasized these six indicia of custody are representative and are not exclusive. A finding of custody does not require the factual circumstances of a case to present all indicia; and a particularly strong showing of one factor may compensate for a lesser or non-existent showing of another factor. Id. Guided by these principles, we review de novo the district court’s application of the Griffin factors to this case. The district court found the absence of any mitigating factors and a particularly strong showing of one aggravating indicium — a police-dominated atmosphere. Based on these findings, the district court concluded the indi-cia, when balanced, weighed in favor of finding that Axsom’s belief that he was in custody was objectively reasonable under the totality of the circumstances. The district court found the agents failed to inform the defendant (1) he was not under arrest; (2) the questioning was voluntary; (3) he was free to leave; or (4) he could reject the agents’ request to answer questions. During the suppression hearing, Hill and Mensinger testified that Hill told Axsom, before questioning him, that he was not under arrest. Axsom’s testimony did not deny this fact. Axsom explained “I’m not saying [Hill] did not say that. I’m just saying the words did not register with me.” Furthermore, both Hill and Mensinger testified that Hill told Ax-som, before questioning him, that she would like to talk with him, if" }, { "docid": "14224827", "title": "", "text": "of their interview, Special Agent Howley and King contacted Laurita at his workplace to ask a few questions. Although they did not expressly tell Laurita his participation was voluntary or that he was free to leave, nothing about the circumstances or the investigators’ actions indicated otherwise. We note the district court may have placed undue importance on the first Griffin factor, commenting it “weighs heavily in the court’s analysis in this case.” We have emphasized that informing a suspect his participation in questioning is voluntary and that he is free to leave can be an important mitigating factor. See, e.g., United States v. Elzahabi, 557 F.3d 879, 883, 884 (8th Cir.2009) (explaining “an express advisement that a suspect is not under arrest and that his participation is voluntary” is the' “ ‘most obvious and effective means of demonstrating that a suspect has not been taken into custody’ ” (quoting United States v. Brave Heart, 397 F.3d 1035, 1039 (8th Cir.2005))). .As the United States suggests, “the opposite inference” — that a suspect not being told he is free to leave during police questioning is a strong indication he was in custody — does not necessarily follow, because “the touchstone of our inquiry remains whether [Laurita] was restrained as though he were under formal arrest.” United States v. Lowen, 647 F.3d 863, 868 (8th Cir.2011); accord Beheler, 463 U.S. at 1125, 103 S.Ct. 3517. Next, the district court erred when it found “Laurita’s freedom of movement was significantly constrained.” None of the actions undertaken by- Special Agent Howley or King restrained Laurita’s freedom of movement to “the degree associated with formal • arrest.” United States v. Williams, 760 F.3d 811, 815 (8th Cir.2014). Before, during, and after the interview, neither Special Agent Howley nor King handcuffed, physically or verbally restrained, or otherwise confined Laurita. Cf. United States v. Cowan, 674 F.3d 947, 957 (8th Cir.2012) (concluding where a suspect “was detained, handcuffed, and patted down while [a detective] questioned him[,]” the suspect was in. custody “because a reasonable person in [his] position would not have felt free to end the questioning" }, { "docid": "22427531", "title": "", "text": "keep everyone inside the residence, and that during the interview Agent Shumaker “block[ed] [his] entry to his living room” and Agent Chance “positioned himself between [Hargrove] and the back door.” The district court adopted the magistrate judge’s recommendation. The court observed that Hargrove’s argument “that he did not feel free to leave is not dispositive” because “‘[cjustody determinations do not depend on the subjective views of either the interrogating law enforcement officers or the person being questioned, but depend instead [on] the objective circumstances of the interrogation.’ ” Concluding, the district court found that [g]iven the testimony of Agents Chance and Shumaker, and defendant’s own testimony, that defendant was not handcuffed at the time his statements were made; that the agents did not draw their weapons in the kitchen; that defendant was told he was not under arrest and that he was free to leave; and that the conversation that took place between the defendant and the agents was amicable and nonthreatening in tone, the [c]ourt finds that defendant was not in custody at the time of his interview on January 5, 2007 and, therefore, not subject to the protection of Miranda warnings. Defendant’s objection is accordingly overruled. The case proceeded to trial by jury, and the Government introduced into evidence the statements Hargrove made to Agent Chance during the January 5, 2007 interview. In addition, the two law enforcement officers posing as minor females and S.M., inter alia, testified against Hargrove. At the end of the three-day trial, the jury convicted Hargrove on all three counts. After hearing the parties’ arguments as to the Sentencing Guidelines calculation, the district court determined the appropriate combined adjusted offense level to be 46, although the Guidelines cap the offense level at 43. When combined with a criminal history category of II, the Guidelines called for 120 months’ imprisonment on Count I, 240 months’ for Count II, and life imprisonment on Count III. After hearing further arguments as to an appropriate sentence, the district court sentenced Hargrove to 120 months’ imprisonment on Count I, 240 months’ imprisonment on Count II, and life imprisonment" }, { "docid": "7922889", "title": "", "text": "v. Flores-Sandoval, 474 F.3d 1142, 1146 (8th Cir.2007) (quoting Maine v. Thibodeau, 475 U.S. 1144, 1146, 106 S.Ct. 1799, 90 L.Ed.2d 343 (1986)). “ ‘The ultimate inquiry ... is whether there was a formal arrest, or restraint on freedom of movement of the degree associated with a formal arrest.’ ” Id. (quoting United States v. Black Bear, 422 F.3d 658, 661 (8th Cir.2005)). To make this determination, we must first consider the totality of the circumstances and then decide “whether a reasonable person in his position would consider his ‘freedom of movement restricted to the degree associated with formal arrest.’ ” Id. (quoting United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004), cert. denied, 544 U.S. 1060, 125 S.Ct. 2514, 161 L.Ed.2d 1109 (2005)). We make our determination based on the objective facts, not Johnson’s subjective views. Id. We have previously explained that, although these factors are not exclusive, factors that would indicate custody are: (1) whether the officers informed Johnson he was free to leave and not required to answer any questions; (2) whether Johnson “possessed freedom of movement;” (3) whether Johnson initiated the contact with the officers or voluntarily acquiesced; (4) whether the officers employed strong arm tactics or strategies; (5) whether “the atmosphere was police dominated;” and (6) whether the officers arrested Johnson at the end of the interview. Id. at 1146-47. During both interviews, officers informed Johnson that he was not required to answer any questions. During the June 27 interview at Johnson’s residence, the officers informed him that he could ask them to leave at any time (and he eventually did so and the officers left), and during the June 30 interview at the police station, the officers informed him that he was free to leave at any time. Johnson’s freedom of movement was not restricted, and he was continuously observed by an officer at his home because there was a firearm on the kitchen counter. Johnson voluntarily acquiesced to the first interview at his home, and he initiated the second interview when he told officers that he wanted to speak with the officers" }, { "docid": "3625260", "title": "", "text": "to questions. United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). The remaining factors, if present, favor a finding that Gibo-ney was in custody during the interrogation. Id. Those factors are: “(4) whejther strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; [and] (6) whether the suspect was placed under arrest at the termination of the questioning.” Id. The first factor is present and weighs heavily against a finding that Giboney was in custody. Detective Walk repeatedly informed Giboney during the interview that he was not under arrest, could end the interview whenever he wanted, and was free to leave. Giboney confirmed his understanding with responses such as “Ok” and “That’s fine.” As the court in Czichray explained, “That a person is told repeatedly that he is free to terminate an interview is powerful evidence that a reasonable per son would have understood that he was free to terminate the interview.” 378 F.3d at 826. “So powerful,” the court continued, “that no governing precedent of the Supreme Court or [the Eighth Circuit] ... holds that a person was in custody after being clearly advised of his freedom to leave or terminate questioning.” Id.; see also United States v. Perrin, 659 F.3d 718, 721 (8th Cir. 2011) (stating that the Eighth Circuit has “never held that a person was in custody after receiving” admonitions from law enforcement that the person was free to leave). As to the second factor, Giboney argues that his freedom of movement was restrained during questioning because Detective Walk escorted him to the restroom and outside for a smoke. We fail to see how Detective Walk “restrained. [Gibo-ney’s] freedom of movement to the degree associated with formal arrest” merely by joining Giboney as he moved about and outside the house. See United States v. Laurita, 821 F.3d 1020, 1024 (8th Cir. 2016) (internal quotation marks omitted); see also Czichray, 378 F.3d at 825, 830 (defendant who was accompanied by law enfórcement to his bedroom and bathroom during questioning was not in custody for purposes" }, { "docid": "9915994", "title": "", "text": "money laundering in this case. B. Sutera’s Motion to Suppress Statements Sutera’s motion to suppress the statements he made on December 11, 1990 was denied. Sutera insists this was error because these statements were made in a custodial setting without Miranda warnings. The district court held that Sutera was not in custody at the time of the questioning, and therefore, no Miranda warnings were necessary. We review the district court’s determination on this issue under a clearly erroneous standard. See United States v. Carter, 884 F.2d 368, 370 (8th Cir.1989); United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir.1989). In determining whether a custodial interrogation has occurred, we consider the “totality of the circumstances.” See United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985). Relevant factors in this determination include the “accused’s freedom to leave the scene and the purpose, place and length of interrogation.” Id. Other such factors include the subjective intent of the interrogating officer, the age and experience of the person interviewed, and the mode and manner of the questioning. See United States v. Rorex, 737 F.2d 753, 756 (8th Cir.1984). On December 11, 1990, Agent King, Agent Burns, and four other law enforcement officers went to Sutera’s apartment to execute a search warrant for the residence, Sutera’s automobile, and the actual persons of Sutera and Richard Turner. After searching Sutera, the officers asked him if he was willing to talk to them about his gambling business. Sutera was informed that he was not under arrest, that he did not have to answer questions, and that he could leave at any time. Sutera indicated that he was willing to talk to the officers. The officers conducted the interview in the bedroom because there were only three rooms in the apartment, and Richard Turn er, a potential codefendant, was in the kitchen. The door to the bedroom remained open throughout the interview. Sutera was free to move about the apartment during the execution of the search warrants and the interview, with the limitation that he not interfere with the officers’ search or answer the telephone. During" }, { "docid": "22976773", "title": "", "text": "a reasonable person in the suspect’s situation would have believed that she was free to terminate the interrogation and leave. See id. at 950. We also have considered the following other factors: (1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so; whether the suspect possessed unrestrained freedom of movement during questioning; and whether the suspect initiated contact with the police or voluntarily admitted the officers to the residence and acquiesced to their requests to answer some questions. Id. In this case, on September 30, 1997, FBI Special Agents Archey and Stone went to Camp Roulston, Grubich’s place of employment, to conduct an interview with Grubich. In the course of investigating the insurance scheme at Republic Claims, Archey attempted to interview all of the nominees who had received fraudulent checks, and he wanted to interview Grubich to determine how much money she had received from McCalister for participating in the scheme. After several unsuccessful attempts to reach Grubich at home by telephone, Archey made arrangements with officials at Camp Roulston to interview Grubich at work. Grubich was not informed of the interview ahead of time and was called to Camp Roulston’s administrative offices during the work day. An official at the camp chose the room for the interview, which was an unused classroom with windows. The interview lasted for less than an hour. Archey and Stone sat on one side of a table, while Grubich sat on the opposite side with her back to the door. The door to the classroom was closed, but not locked. Archey never told Grubich that she could not leave the room and never attempted to prevent her from leaving the room. Grubich never asked to leave the room or to terminate the interview. Archey did not have his gun drawn and used a business-like" }, { "docid": "22417764", "title": "", "text": "SA Andrews’ statements that Craighead was free to leave in the context of the physical characteristics of the interview location. An interview conducted in a suspect’s kitchen, living room, or bedroom might allow the suspect to take comfort in the familiar surroundings of the home and decrease the sensation of being isolated in a police-dominated atmosphere. Here, SA Andrews escorted the suspect to a storage room in back of the house. The room was unfurnished. SA Andrews testified that she herself was squatting on the floor, and that Craighead was probably sitting on a box or a chair grabbed from another room. The room had a single door. In front of the door stood an armed detective wearing a raid vest. Beyond the door were six more officers searching his house. Craighead testified that he did not want to leave his house entirely, because he did not want to leave the officers alone with his belongings and did not want to leave his dog unattended. Although SA Andrews had told him he was “free to leave” and that his statements were voluntary, a reasonable person in Craighead’s position would not have actually “felt” he was free to leave. Thompson, 516 U.S. at 112, 116 S.Ct. 457. 5 Considering the totality of the circumstances as analyzed under the four factors listed above, we find that the fact that SA Andrews told Craighead that he was free to leave weighs in favor of finding he was not in custody, but the other three factors lead us to the conclusion that Craighead was in custody for purposes of Miranda. Craighead’s home had become a police-dominated atmosphere. Escorted to a storage room in his own home, sitting on a box, and observing an armed guard by the door, Craighead reasonably believed that there was simply nowhere for him to go. IV The search of Craighead’s home was lawful. Craighead did not allege any specific portion of the warrant affidavit that was actually false or misleading. We affirm the district court’s ruling that Craig-head was not entitled to a Franks hearing. The interrogation within Craighead’s" }, { "docid": "19884829", "title": "", "text": "3138) (internal brackets and ellipsis removed). A reasonable person “does not have a guilty state of mind and does not have peculiar mental or emotional conditions that are not apparent to the questioning officer.” Hudson, 210 F.3d at 1190 (quoting United States v. Ewing L., 147 F.3d 1240, 1246 (10th Cir.1998)). “The determination of custody, from an examination of the totality of the circumstances, is necessarily fact intensive.” Griffin, 7 F.3d at 1518. We thus avoid hard line rules and instead allow several non-exhaustive factors to guide us. First, we consider “the extent to which the suspect is made aware that he or she is free to refrain from answering questions or to end the interview at will.” Id. Second, we look at “the nature of questioning,” where “prolonged accusatory questioning is likely to create a coercive environment from which an individual would not feel free to leave.” Id. Finally, by using the following helpful guideposts, we check whether police dominate the encounter: [Separation of the suspect from family or colleagues who could offer moral support; isolation in nonpublic questioning rooms; threatening presence of several officers; display of a weapon by an officer; physical contact with the subject; and an officer’s use of language or tone of voice in a manner implying that compliance with the request might be compelled. Id. at 1518-19. Although these factors are useful, we emphasize that we must look to the totality of the circumstances and consider the police-citizen encounter as a whole, rather than picking some facts and ignoring others. B. Application We agree with the district court’s conclusion that Jones was not in custody when she spoke with Agent Bridge. Suspect’s Freedom to Leave The first factor weighs against a finding of custody. Shortly after Bridge initiated the encounter, he informed Jones she was not under arrest, did not have to talk to him, and could leave if she wanted. He specifically motioned to the door on Jones’s side of the car and made sure it was unlocked. A bit later in the encounter, Bridge again told Jones she was free to leave." }, { "docid": "1942614", "title": "", "text": "by two IRS agents in the dining room of a residence, was that such “noncustodial interrogation” might possibly in some situations lead to an involuntary confession inadmissible under the Fifth Amendment, id. at 347-48, 96 S.Ct. 1612, but that the prophylactic rule of Miranda was not applicable. In reaching its conclusion that Czichray was nonetheless in custody, the district court relied on the presence of certain “coercive factors” identified in United States v. Griffin, 922 F.2d at 1349, which were said in Griffin to “aggravate the existence of custody.” Id. In Griffin, while emphasizing that our list of considerations was “merely intended to be representative of those indicia of custody most frequently cited by this and other courts when undergoing the prescribed totality of the circumstances analysis,” id., we identified six factors for consideration in making the custody determination: (1) whether the suspect was informed during the interview that the questioning was voluntary, that he could ask the officers to leave, or that he was not considered under arrest; (2) “whether the suspect possessed unrestrained freedom of movement during questioning;” (3) whether the suspect voluntarily acquiesced to official questioning or initiated contact with authorities; (4) “whether strong arm tactics or deceptive stratagems were employed during questioning;” (5) whether there was a police-dominated atmosphere; and (6) “whether the suspect was placed under arrest at the termination of the questioning.” Id. We observed that the first three factors tended to mitigate the existence of custody, while the last three tended to aggravate it. Id. Both parties debate the presence and significance of these so-called “Griffin factors” in their briefs on appeal. Although the “non-exhaustive” Griffin factors and their attendant balancing test are often cited in our decisions concerning Miranda, we recently resolved the question of “custody” as an en banc court with nary a mention of Griffin. See United States v. LeBrun, 363 F.3d 715, 719-24 (8th Cir.2004) (en banc). There is no requirement, therefore, that the Griffin analysis be followed ritualistically in every Miranda case. When the factors are invoked, it is important to recall that they are not by any" }, { "docid": "21750296", "title": "", "text": "the execution of the search warrant, only two agents conducted the interview. During the interview, Axsom sat on an easy chair and smoked his pipe while Hill and Men-singer sat across from him on a small sofa. Communication between the agents and Axsom consisted of two-way questioning. The agents asked questions of Axsom, but Axsom also asked the agents questions about search procedures. Photographs of Axsom and federal agents taken at or near the time of questioning reflect a more casual scene than a police dominated, inherently coercive interrogation. When a suspect is interrogated in the comfort and familiarity of his home, a court is less likely to find the circumstances custodial. See United States v. Erving L., 147 F.3d 1240, 1247 (10th Cir.1998) (quoting 1 W. LaFave, Criminal Procedure § 6.6(e), at 496 (1984 & Supp.1991)). We, therefore, find the district court erred in finding the presence of the fifth indicium or second aggravating factor. The district court also failed to document a finding regarding the presence or absence of the sixth indicium or third aggravating factor. At the termination of the questioning, agents did not arrest Ax-som. Therefore, we find this historical fact fails to establish the presence of the sixth indicium or third aggravating factor. Having reviewed the indicia outlined in Griffin, we find the presence of the first and third mitigating factors. Although evidence exists to support the district court’s finding that agents restrained Axsom’s freedom of action, his freedom was not restrained to a “degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam). Axsom was not handcuffed, nor was he confined to one room. Axsom moved throughout his residence. He secured his dogs outside; he entered his bedroom to obtain clothing; he sat in the living room; and he used his bathroom. Given the extensive arsenal of weapons discovered inside Axsom’s house, we find the absence of the second mitigating factor — unrestrained freedom of movement— much less significant than we otherwise would. Upon entering the residence, agents confronted immediate threats to their" }, { "docid": "3494021", "title": "", "text": "Griffin factor weighs heavily in favor of noncustody when officers clearly inform a suspect that she is free to leave or decline questioning. See United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004). However, when officers inform a suspect only that she is not under arrest, the first factor is less determinative in favor of noncustody, and our analysis relies more on the other indicia of custody. See United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir.2006) (where interviewer’s statement to suspect that she was not under arrest weighed against custody finding, it was less determinative than a statement informing suspect that answers were voluntary and she was free to leave). This case presents the latter situation, as Sanchez’s interviewers informed her that she was not under arrest but did not inform her that she was free to leave or decline questioning. Looking to the second factor, it is unclear whether Sanchez’s freedom of movement was restrained during the interview. While she was not handcuffed, see United States v. Galceran, 301 F.3d 927, 930 (8th Cir.2002) (conclusion that suspect’s freedom of movement was not restricted “as if he were under arrest” weighed in favor of noncustody), the interview was conducted in a small, closed room by two law enforcement officers, with other officers waiting outside. Sanchez did not attempt to leave, and it is unclear what would have happened if she had—particularly after Lavastida became more aggressive and called her a liar. See Ollie, 442 F.3d at 1138 (finding it impossible to determine if suspect’s freedom of movement was restrained where suspect was not physically restrained but did not attempt to move or leave interview). The third factor is also unclear. Sanchez did not initiate contact with police, and it is inconclusive whether she acquiesced to police questioning before entering the interview room. She did agree to questioning once in the interview room, but such compliance could have been in response to a police-dominated environment. The fourth factor weighs in favor of noncustody, as Lavastida did not use strong-arm tactics or deceptive stratagems during the interview; his raised" }, { "docid": "2364755", "title": "", "text": "the interrogation in light of whether a reasonable person in the suspect’s position would have understood his situation to be one of custody.” Axsom, 289 F.3d at 500 (citation omitted). To do this, we have developed a list of six common, but non-exhaustive indicia to determine whether an individual is in custody: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning. United States v. Wallace, 323 F.3d 1109, 1112 (8th Cir.2003). In applying these indicia we employ a balancing test. Axsom, 289 F.3d at 501. “The first three indicia are mitigating factors which, if present, mitigate against the existence of custody at the time of questioning. Conversely, the last three indicia are aggravating factors which, if present, aggravate the existence of custody.” Id. at 500-01. Applying the six factors to this case, we conclude that Wolk was not in custody when he was questioned. First, Wolk knew that the questioning was voluntary and that he was free to leave. When Wolk was initially contacted, the officer told him that he did not have to go back to his home for the execution of the search warrant. Wolk chose to drive to his residence. At his residence, Wolk was informed that the interview was voluntary, that he was free to leave, and that he was not under arrest. See United States v. Jones, 630 F.2d 613, 616 (8th Cir.1980) (“The absence of a formal arrest and the advice of freedom to decline to answer, while not conclusive, are indicative of noncustodial interrogation.”). He also voluntarily" }, { "docid": "21750297", "title": "", "text": "third aggravating factor. At the termination of the questioning, agents did not arrest Ax-som. Therefore, we find this historical fact fails to establish the presence of the sixth indicium or third aggravating factor. Having reviewed the indicia outlined in Griffin, we find the presence of the first and third mitigating factors. Although evidence exists to support the district court’s finding that agents restrained Axsom’s freedom of action, his freedom was not restrained to a “degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam). Axsom was not handcuffed, nor was he confined to one room. Axsom moved throughout his residence. He secured his dogs outside; he entered his bedroom to obtain clothing; he sat in the living room; and he used his bathroom. Given the extensive arsenal of weapons discovered inside Axsom’s house, we find the absence of the second mitigating factor — unrestrained freedom of movement— much less significant than we otherwise would. Upon entering the residence, agents confronted immediate threats to their physical security — dogs, rifles and shotguns, a loaded handgun, a Samurai sword collection, and an extensive array of other guns and knives hanging from the walls. From an objective viewpoint, a reasonable person in Axsom’s shoes should have realized the agents escorted him not to restrict his movement, but to protect themselves and the integrity of the search. We further find the absence of any aggravating factors outlined in Griffin. While execution of the search warrant was certainly police-dominated, the interview between the two agents and Axsom was not. The record contains no evidence of coercive or deceptive conduct by the agents during questioning. Axsom was not arrested after questioning. Finally, the record establishes no other aggravating circumstances. In evaluating whether Axsom was “in custody,” we are not concerned with any moral or psychological pressures causing Axsom to be forthright and helpful to the agents. Our examination only relates to the restraint imposed by the agents. Ewing L., 147 F.3d at 1247. Under the relevant circumstances here, a reasonable person would have felt he" }, { "docid": "3494020", "title": "", "text": "express questioning or functional equivalent), the only issue is whether the interrogation was custodial. This court invokes a nonexclusive, six-factor test when making such a determination: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning. Griffin, 922 F.2d at 1349. The analysis depends upon a review of the totality of the circumstances, and “[t]he ultimate test is whether a reasonable person in that position would have felt free to end the interview.” Aldridge, 664 F.3d at 711. The first Griffin factor weighs heavily in favor of noncustody when officers clearly inform a suspect that she is free to leave or decline questioning. See United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004). However, when officers inform a suspect only that she is not under arrest, the first factor is less determinative in favor of noncustody, and our analysis relies more on the other indicia of custody. See United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir.2006) (where interviewer’s statement to suspect that she was not under arrest weighed against custody finding, it was less determinative than a statement informing suspect that answers were voluntary and she was free to leave). This case presents the latter situation, as Sanchez’s interviewers informed her that she was not under arrest but did not inform her that she was free to leave or decline questioning. Looking to the second factor, it is unclear whether Sanchez’s freedom of movement was restrained during the interview. While she was not handcuffed, see United States v. Galceran, 301 F.3d 927," }, { "docid": "3625259", "title": "", "text": "Czichray, 378 F.3d 822, 826 (8th Cir. 2004) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)). This determination is not based on the interrogator’s perspective; “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Six factors inform our analysis, although the factors are not exhaustive and need not be applied “ritualistically” in every case. Czichray, 378 F.3d at 827. The first three factors, which if present tend to show that Giboney was not in custody, are: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; [and] (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions. United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). The remaining factors, if present, favor a finding that Gibo-ney was in custody during the interrogation. Id. Those factors are: “(4) whejther strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; [and] (6) whether the suspect was placed under arrest at the termination of the questioning.” Id. The first factor is present and weighs heavily against a finding that Giboney was in custody. Detective Walk repeatedly informed Giboney during the interview that he was not under arrest, could end the interview whenever he wanted, and was free to leave. Giboney confirmed his understanding with responses such as “Ok” and “That’s fine.” As the court in Czichray explained, “That a person is told repeatedly that he is free to terminate an interview is powerful evidence that a reasonable per son would have understood that he was free to terminate the interview.” 378 F.3d at 826. “So powerful,” the court continued, “that no" } ]

[ { "docid": "6054835", "title": "", "text": "secured claims.” (Emphasis added). Herein, the Trustee could not disburse or turn over any sums because the Debtors converted to Chapter 13 soon after the Trustee demanded turnover of the automobile. By operation of law, the Trustee was forestalled from fully administering the Chapter 7 case. The Court’s research has revealed that other bankruptcy courts have generally refused to apply a literal reading of Code § 326(a), restricting the section’s application to fully administered cases only. Where a case is either converted or dismissed, courts have seen fit to compensate the trustee even where no money has been disbursed to creditors, upon a showing that the trustee has performed substantial services on the estate’s behalf. Consequently, a Chapter 7 trustee who created an asset in a no-asset case by successfully blocking a debtor’s discharge was awarded compensation on a quantum me-ruit basis when the debtor’s conversion to Chapter 13 stymied distribution of monies to creditors. Matter of Parameswaran, 64 B.R. 341, 343 (Bankr.S.D.N.Y.1986). Additionally, where a Chapter 7 trustee has actually marshaled assets prior to the debt- or’s conversion to Chapter 13, the bankruptcy court approved compensation even in the absence of disbursement. In re Schneider, 15 B.R. 744, 745 (Bankr.D.Kan.1981). Compare, In re Yale Mining Corp., 59 B.R. 302 (Bankr.W.D.Va.1986) (A strict interpretation of Code § 326(a) is not warranted absent complete administration, and thus fees paid to a Chapter 11 trustee prior to conversion are not considered when computing subsequent Chapter 7 trustee fees). Further, notwithstanding the language of Code § 326(a), the quantum meruit basis of trustee compensation has been endorsed where debtors sought to dismiss their bankruptcy cases after trustee involvement and activity. See, In re Smith, 51 B.R. 273, 275-76 (Bankr.D.C.1984); Matter of Pray, 37 B.R. 27, 30 (Bankr.M.D.Fla.1983); In re Flying S Land & Cattle Co., 23 B.R. 56, 58 (Bankr.C.D.Cal.1982); In re Rennison, 13 B.R. 951, 953 (Bankr.W.D.Ky.1981); See also, In re Wolfe, 12 B.R. 686, 687 (Bankr.S.D.Ohio 1981); Compare, In re Bofill, 25 B.R. 550, 552 (Bankr.S.D.N.Y.1982) (Chapter 7 trustee fees are not to be based solely on the value of assets" } ]

[ { "docid": "3437969", "title": "", "text": "on the Motion for Ex Parte Order Allowing Administrative Expense held by this Court on February 5, 1987, at 1:30 p.m. Kleinfeld seeks $250.00 compensation for the services performed as Chapter 7 Trustee prior to the conversion of the case to a Chapter 13 and seeks the same as an administrative expense. On February 20, 1987, this Court entered an Order which denied Kleinfeld’s Motion for Ex Parte Order Allowing Administrative Expense. It should be noted that the Motion’s title is misleading since a hearing was held on the Motion, and therefore, it was not considered ex parte. Section 326(a) of the Bankruptcy Code provides for maximum limits upon the compensation to be received by a Chapter 7 Trustee and provides as follows: (a) In a case under Chapter 7 or 11, the Court may allow reasonable compensation under Section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed fifteen percent on the first $1,000 or less, six percent on any amount in excess of $1,000 but not in excess of $3,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims. 11 U.S.C. § 326(a). A literal reading of § 326 would suggest that a Trustee who does not distribute any moneys is not entitled to any statutory commissions. The Courts, however, have generally reasoned that a literal reading of § 326(a) should apply only in fully administered cases and that in cases which were not fully administered, through no fault of the Trustee, compensation should be awarded to the Trustee on a quantum meruit basis when the Trustee performs substantial services, but did not disburse any moneys. This is especially true when the case is either dismissed or converted. In re Woodworth, 70 B.R. 361 (Bankr.N.D.N.Y.1987); In re Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986); In re Smith, 51 B.R. 273 (Bankr.D.C.1984); In re Pray, 37 B.R. 27 (Bankr.M.D.Fla.1983); In re Dennison, 13 B.R. 951 (Bankr.W.D.Ky.1981). In the case of Parameswaran, supra," }, { "docid": "3437970", "title": "", "text": "excess of $1,000 but not in excess of $3,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims. 11 U.S.C. § 326(a). A literal reading of § 326 would suggest that a Trustee who does not distribute any moneys is not entitled to any statutory commissions. The Courts, however, have generally reasoned that a literal reading of § 326(a) should apply only in fully administered cases and that in cases which were not fully administered, through no fault of the Trustee, compensation should be awarded to the Trustee on a quantum meruit basis when the Trustee performs substantial services, but did not disburse any moneys. This is especially true when the case is either dismissed or converted. In re Woodworth, 70 B.R. 361 (Bankr.N.D.N.Y.1987); In re Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986); In re Smith, 51 B.R. 273 (Bankr.D.C.1984); In re Pray, 37 B.R. 27 (Bankr.M.D.Fla.1983); In re Dennison, 13 B.R. 951 (Bankr.W.D.Ky.1981). In the case of Parameswaran, supra, a Chapter 7 Trustee who created an asset in a no-asset case by successfully blocking a debtor’s discharge was awarded compensation on a quantum meruit basis when the debtor’s conversion to Chapter 13 prevented liquidation of the non-exempt assets of the Debtor. Furthermore, notwithstanding the language of § 326(a), Trustee compensation has been approved on the quantum meruit basis when debtors have moved for dismissal of their bankruptcy cases after the Trustee has become actively involved in the administration of the estate. See Smith, Pray, supra. The Pray case stated: When one considers an award on equitable principles and based on quantum meruit, one must obviously consider the nature and extent of the services rendered by the trustee. In re Pray, 37 B.R. at 30 (emphasis added). The fees requested by Kleinfeld are not excessive and were adequately performed by the Trustee. Based on the foregoing, the Court finds that the Chapter 13 Trustee is to accept the sum of $250.00 as an administrative expense for the substantial services performed by Kleinfeld, the Chapter 7" }, { "docid": "18139217", "title": "", "text": "on the trustee to establish entitlement to the fee through a detailed description of the services provided. The application should demonstrate a nexus between the trustee’s efforts and the uncovering of assets.” Id. In so holding, however, the court in Moore did not preclude the application of the percentages set forth in Section 326(a) to determine reasonable compensation for the former Chapter 7 Trustee. Id. The Moore court cited with approval the case of In re Berry, 166 B.R. 932 (Bankr.D.Or.1994). The Bankruptcy Court in Berry also rejected a strict interpretation of Section 326(a) in favor of compensating former Chapter 7 Trustees in cases that have not been fully administered, finding that the performance of substantial services that benefit the estate should be compensated. Id. at 934-35; see also In re Washington, 232 B.R. 814, 816 (Bankr.S.D.Fla.1999) (finding that compensation on a quantum me-ruit basis was appropriate if the services rendered, which benefitted the bankruptcy estate, were reasonable and necessary). The court in In re Colburn, 231 B.R. 778 (Bankr.D.Or.1999), found, however, that it was unnecessary to look beyond the bounds of the Bankruptcy Code to award compensation to former Chapter 7 Trustees in converted cases, as that court found that the authority under which to award compensation to a trustee in those situations existed under Section 330 of the code, which establishes a standard of reasonableness in determining trustee compensation. Id. at 784 fn. 7. Similar to the courts in Moore, Berry, and Washington, the court found that Section 326(a) did not preclude compensation to a former Chapter 7 Trustee in the instant circumstances and thus did not impose maximum limitations when determining compensation under Section 330 to the former Chapter 7 Trustees. Id. at 782-83. The court explained also that, in its view, Section 326(c) also did not serve to limit former Chapter 7 Trustees from receiving compensation in converted cases. According to that court, “Section 326(c) was designed to solve a perceived problem in liquidating cases under the Bankruptcy Act where the receiver and the succeeding trustee could receive maximum compensation for performing the same functions,” and" }, { "docid": "18139215", "title": "", "text": "just, and consistent with the intent of Congress and the policies underlying the Bankruptcy Code. Statutory justification lies in § 105(a), if nowhere else.” In re Owens, 2000 WL 1672331, at *2; In re Ferris, 2000 WL 877038, at *2. F. Quantum Meruit Theory Still other bankruptcy courts have relied upon the theory of quantum meruit in finding that compensation to a former Chapter 7 Trustee is not precluded in cases that are not fully administered. These courts, finding that Section 326 fails to address compensating former Chapter 7 Trustees, have reasoned that quantum me-ruit provides a basis for compensation if the trustee provided substantial services that benefitted the bankruptcy estate, but that such compensation should be a rare occurrence. See, e.g., In re Moore, 235 B.R. 414, 416-17 (Bankr.W.D.Ky.1999), aff'd sub nom. Schilling v. Moore, 286 B.R. 846 (W.D.Ky.2002); In re Washington, 232 B.R. 814, 817 (Bankr.S.D.Fla.1999). The court in Moore reached this conclusion by noting that, while Section 330 requires trustee compensation to be reasonable, Section 326 limits maximum compensation to the limits set forth therein. However, since Section 326 does not address fees for former Chapter 7 Trustees post-conversion to Chapter 13, the court found quantum meruit to be the appropriate basis upon which to award such compensation. In re Moore, 235 B.R. at 416. In so holding, that court stated: [T]he chapter 7 trustee should be compensated on a quantum meruit basis in a case that is not fully administered, through no fault of the trustee, where the trustee performs substantial services that result in discovery of assets for the benefit of creditors. Conversely, the court does not envision windfalls for the trustee merely because a debtor converts for reasons unrelated to action by the trustee. We are further convinced that the effect of this decision will be to discourage a debtor’s intentional concealment of assets and encourage a trustee’s diligent discovery of assets. Id. at 417. The Moore court went on to state that the award of fees to former Chapter 7 Trustees would be only on a case-by-case basis, and that “the burden is" }, { "docid": "6555393", "title": "", "text": "foregoing findings and conclusions, it is ORDERED that all objections to Moister Claim # 1 are OVERRULED, and Mr. Moister is allowed compensation in the sum of $7605.00 for professional services and $88.34 for reimbursement of expenses, for a total of $7693.34, and it is FURTHER ORDERED that the objections to Moister Claim # 2 as amended, seeking compensation in the sum of $5250.00 for professional services and $20.25 for reimbursement of expenses, for a total of $5270.25, are SUSTAINED and the claim is DENIED. IT IS SO ORDERED. . By order entered January 8, 1987, the court authorized the Chapter 7 trustee to retain his law firm, Roger W. Moister, Jr., P.C., as attorney for the trustee. The legal services were rendered by Roger W. Moister, Jr., who also served as Chapter 7 trustee in this case. . In this district, the United States Trustee has appointed a standing Chapter 13 trustee. . It is undisputed that the trustee has not disbursed or turned over any funds in the Chapter 7 estate. Under a literal reading of Section 326, it is clear that no statutory compensation is payable to the trustee. Some courts however have recognized that at least a quantum meruit claim is allowable. Conversion from Chapter 7 to Chapter 13 to avoid the consequences of a trustee’s actions in locating, identifying and administering assets, may be unfair to the trustee. Thus, some allowance of compensation may be appropriate, although not authorized by the literal language of the statute. Such determinations must of necessity be made on a case-by-case basis. See In re Roberts, 80 B.R. at 567-68; In re Woodworth, 70 B.R. 361 (Bankr.N.D.N.Y.1987); In re Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986); In re Smith, 51 B.R. 273 (Bankr.D.C.1984); In re Pray, 37 B.R. 27 (Bankr.M.D.Fla.1983); In re Rennison, 13 B.R. 951 (Bankr.W.D.Ky.1981)." }, { "docid": "18139234", "title": "", "text": "must be a reasonable one. Loudin Ins. Agency, Inc. v. Aetna Casualty & Surety Co., 966 F.2d 1443 (4th Cir.1992) (unpublished table decision). The instant cases do not fit into the traditional quantum meruit framework, as no contract, implied or otherwise, exists. While Ruby’s efforts may well have been valuable to these four bankruptcy estates in terms of a greater recovery being had by the creditors, Chapter 7 Trustees, as addressed above, are statutorily bound to perform those duties. Even if the Court were to ignore this fact, however, quantum meruit cases, in addition to being cases based upon a contract, are also based upon an expectation of payment, which, as this Court discussed above, should not exist on the part of the Chapter 7 Trustee. Even if the Former Chapter 7 Trustee had an expectation of payment, such was not reasonable given the duties of the trustee set forth in the statutory scheme and the language in Section 326(a), which, as this Court has found, plainly states that compensation will be awarded only if the Chapter 7 Trustee makes disbursements. Like the court in Rodriguez, this Court also views Section 330 as mandating essentially a quantum meruit approach to trustee compensation. In re Rodriguez, 240 B.R. 912, 914 (Bankr.D.Colo.1999). Section 330 does not, as the court in Colburn supposes, create a mechanism for the compensation of trustees without any maximum limitation. See In re Colburn, 231 B.R. 778, 782-83 (Bankr.D.Or.1999). While Ruby’s compensation might otherwise be reasonable under Section 330, the plain language of Section 326(a) still controls whether Ruby receives any compensation at all. Some courts that permit compensation on a quantum meruit basis have done so when the trustee has uncovered undisclosed assets, acknowledging the extraordinary circumstances that must exist to support an award of compensation. See, e.g., In re Moore, 235 B.R. 414, 417 (Bankr.W.D.Ky.1999), aff'd sub nom. Schilling v. Moore, 286 B.R. 846 (W.D.Ky.2002) (noting that a trustee’s application for compensation must demonstrate the nexus between his efforts and the uncovering of assets). Thus, even if this Court were inclined to adopt the quantum meruit" }, { "docid": "11512662", "title": "", "text": "who does not distribute any moneys is not entitled to any statutory commissions, the courts have generally reasoned that a literal reading of § 326(a) should apply only in fully administered cases and that in cases which were not fully administered, through no fault of the trustee, compensation should be awarded to the trustee on a quantum meruit basis when the trustee performed substantial services but did not disburse any moneys. In re Smith, 51 B.R. 273, 275 (Bankr.D.D.C.1984); In re Pray, 37 B.R. 27 (Bankr.M.D.Fla.1983); In re Rennison, 13 B.R. 951 (Bankr.W.D.Ky. 1981). The trustee in this case is entitled to an award based on quantum meruit. When one considers an award on equitable principles and based on quantum meruit, one must obviously consider the nature and the extent of the services rendered by the trustee. In re Pray, 37 B.R. at 30. In the instant case the trustee created an estate from a no asset case and succeeded in setting aside a fraudulent transfer. The trustee’s position was sustained on appeal. Her services and involvement in this case should not go unrewarded. However, in determining the proper award to be made to the trustee, the court must be mindful of the fact that; the trustee did not prepare any inventory; was not required to collect any tangible assets of the estate; was not called upon to safekeep and to preserve any assets; and did not, in the strict sense, liquidate anything whatsoever. In re Pray 37 B.R. at 30. In light of the foregoing, an award to the trustee of $1000 is reasonable and proper for her services as trustee, as distinguished from her services as a member of the firm of Jules Teitelbaum, P.C. with respect to which a separate award will be made concerning the attorneys’ fees applied for by counsel for the trustee. ATTORNEYS’ FEES FOR TRUSTEE’S COUNSEL As counsel to the trustee, Jules Teitel-baum, P.C., has applied for compensation in the amount of $13,723.65 plus disbursements of $138.70. Counsel for the trustee performed valuable legal services which were beneficial to the Chapter 7 estate." }, { "docid": "362175", "title": "", "text": "where no moneys have been disbursed or turned over during the Chapter 7 proceedings, beyond the minimum provided in § 330(b). See In re Fischer, 210 B.R. 467 (Bankr.D.Minn.1997). However, I agree with the majority of courts that have considered this issue and have determined that § 326(a) does not preclude Chapter 7 trustee compensation in cases that are dismissed on the debtor’s motion or converted to Chapter 13 prior to completion of Chapter 7 administration. See, e.g., In re Berry, 166 B.R. 932 (Bankr.D.Or.1994); In re Tweeten Funeral Home, PC, 78 B.R. 998 (Bankr.D.N.D.1987); In re Stabler, 75 B.R. 135 (Bankr.M.D.Fla.1987); In re Woodworth, 70 B.R. 361 (Bankr.N.D.N.Y.1987); In re Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986); In re Smith, 51 B.R. 273 (Bankr.D.D.C.1984); In re Pray, 37 B.R. 27 (Bankr.M.D.Fla.1983); In re Flying S Land & Cattle Company, Inc., 23 B.R. 56 (Bankr.C.D.Cal.1982); and In re Rennison, 13 B.R. 951 (Bankr.W.D.Ky.1981). I have come to this conclusion based both upon the language of § 326(a) and its function in the scheme of the Bankruptcy Code. Reasonable compensation to trustees is determined under the standards of § 330. See In re Financial Corp. of America, 114 B.R. 221, 223-24 (9th Cir. BAP 1990), aff'd, 946 F.2d 689 (9th Cir.1991). Section 326 acts independently as a limit on trustee compensation. Id. By its terms, § 326(a) limits trustee compensation to certain percentages of “all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor...” in “a case under chapter 7 or 11.” In other words, it limits compensation to trustees in Chapter 7 or 11 cases where funds in fact have been distributed to parties in interest other that the debtor. However, the terms of § 326(a) do not address the circumstances of Chapter 7 cases where assets have been found, that convert to Chapter 13 before assets are liquidated and disbursed. Such cases often require the Chapter 7 trastee to render substantial services for the benefit of the estate prior to conversion, as mandated by § 704 —services for which the Chapter 7" }, { "docid": "18139214", "title": "", "text": "the Ninth Circuit Court of Appeals found that, despite the Bankruptcy Code’s failure to provide for payment of fees to a debtor’s counsel in a Chapter 7 case, such fees should be allowed because the omission of such a provision was a “mistake” and policy considerations favored allowing such compensation, so also Judge Jaroslovsky found compensation was favored in Ferris and Owens. In re Owens, 2000 WL 1672331, at *1; In re Ferns, 2000 WL 877038, at *1 (both citing United States Trustee v. Garvey, Schubert & Barer (In re Century Cleaning Servs., Inc.), 195 F.3d 1053, 1060 (9th Cir.1999)). Judge Jaroslovsky placed an equal amount of emphasis on the argument that equitable concerns favored compensating the former Chapter 7 Trustees, who, the court found, completed their jobs “diligently and effectively.” In re Owens, 2000 WL 1672331, at *1; In re Ferris, 2000 WL 877038, at *2. Citing Section 105(a), Judge Jaroslovsky concluded, ‘When the Bankruptcy Code does not specifically forbid compensation, Century Cleaning makes it clear that the court should do what is right, just, and consistent with the intent of Congress and the policies underlying the Bankruptcy Code. Statutory justification lies in § 105(a), if nowhere else.” In re Owens, 2000 WL 1672331, at *2; In re Ferris, 2000 WL 877038, at *2. F. Quantum Meruit Theory Still other bankruptcy courts have relied upon the theory of quantum meruit in finding that compensation to a former Chapter 7 Trustee is not precluded in cases that are not fully administered. These courts, finding that Section 326 fails to address compensating former Chapter 7 Trustees, have reasoned that quantum me-ruit provides a basis for compensation if the trustee provided substantial services that benefitted the bankruptcy estate, but that such compensation should be a rare occurrence. See, e.g., In re Moore, 235 B.R. 414, 416-17 (Bankr.W.D.Ky.1999), aff'd sub nom. Schilling v. Moore, 286 B.R. 846 (W.D.Ky.2002); In re Washington, 232 B.R. 814, 817 (Bankr.S.D.Fla.1999). The court in Moore reached this conclusion by noting that, while Section 330 requires trustee compensation to be reasonable, Section 326 limits maximum compensation to the limits" }, { "docid": "18139216", "title": "", "text": "set forth therein. However, since Section 326 does not address fees for former Chapter 7 Trustees post-conversion to Chapter 13, the court found quantum meruit to be the appropriate basis upon which to award such compensation. In re Moore, 235 B.R. at 416. In so holding, that court stated: [T]he chapter 7 trustee should be compensated on a quantum meruit basis in a case that is not fully administered, through no fault of the trustee, where the trustee performs substantial services that result in discovery of assets for the benefit of creditors. Conversely, the court does not envision windfalls for the trustee merely because a debtor converts for reasons unrelated to action by the trustee. We are further convinced that the effect of this decision will be to discourage a debtor’s intentional concealment of assets and encourage a trustee’s diligent discovery of assets. Id. at 417. The Moore court went on to state that the award of fees to former Chapter 7 Trustees would be only on a case-by-case basis, and that “the burden is on the trustee to establish entitlement to the fee through a detailed description of the services provided. The application should demonstrate a nexus between the trustee’s efforts and the uncovering of assets.” Id. In so holding, however, the court in Moore did not preclude the application of the percentages set forth in Section 326(a) to determine reasonable compensation for the former Chapter 7 Trustee. Id. The Moore court cited with approval the case of In re Berry, 166 B.R. 932 (Bankr.D.Or.1994). The Bankruptcy Court in Berry also rejected a strict interpretation of Section 326(a) in favor of compensating former Chapter 7 Trustees in cases that have not been fully administered, finding that the performance of substantial services that benefit the estate should be compensated. Id. at 934-35; see also In re Washington, 232 B.R. 814, 816 (Bankr.S.D.Fla.1999) (finding that compensation on a quantum me-ruit basis was appropriate if the services rendered, which benefitted the bankruptcy estate, were reasonable and necessary). The court in In re Colburn, 231 B.R. 778 (Bankr.D.Or.1999), found, however, that it was" }, { "docid": "12603089", "title": "", "text": "proceedings brought by the Movants, the post-conversion time and expense is appropriately awarded as well. The Debtors have opposed the fee applications of the Movants, contending the amount of fees sought by the trustee and the trustee’s counsel are not legally or factually warranted. The Debtors claim they did not fail to cooperate with the Trustee. Mr. Washington, one of the joint debtors, asserts the Trustee was let into the Debtors’ home by one of their children while Mr. Washington was asleep in his bed. He was awakened by the Trustee’s activity and inquired as to her identity. Mr. Washington does not dispute the Trustee identified herself and disclosed her purpose for being on the premises. Notwithstanding, he admits the two had a heated exchange which resulted in the Trustee concluding the Debtors were refusing to cooperate. Although Mr. Washington does not agree with the Trustee’s conclusion that he was uncooperative, this Court does. The Court does not require the Trustee to place herself in a hostile situation with any debtor just so that she may perform her duties. It is the Debtors’ obligation to assist the Trustee during the administration of the case, and from the Debtors’ proffers, it is clear no such assistance was provided. The Debtors further argue the Trustee is not entitled to fees because no statute authorizes the payment of fees where the Trustee makes no disbursements in a ease. This Court does not agree. The fee limitation set forth in 11 U.S.C. § 326 should not preclude the Trustee in this case from receiving compensation on a quantum meruit basis. Courts have reasoned that 11 U.S.C. § 326 applies to fully administered cases; but, in cases which are. not fully administered, through no fault of the Trustee, compensation should still be awarded the Trustee who performs substantial services, but does not disburse any money. See In re Stabler, 75 B.R. 135 (Bankr.M.D.Fla.1987); In re Pray, 37 B.R. 27 (Bankr.M.D.Fla.1983). “Allowing Chapter 7 trustees fee and expense awards in cases converted to Chapter 13 further prevents unfair treatment of Chapter 7 trustees where the conversion" }, { "docid": "14609508", "title": "", "text": "section to fully administered cases only. Id. See In re Stabler, 75 B.R. 135 (Bankr.M.D.Fla.1987); In re Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986); In re Smith, 51 B.R. 273 (Bankr.D.C.1984); In re Pray, 37 B.R. 27 (Bankr.N.D.Fla.1983). See also, In re Rennison, 13 B.R. 951 (Bankr.W.D.Ky.1981) (concerning voluntary dismissal). Rather, where a case is converted or dismissed, several courts have authorized compensation to the trustee upon a showing that the trustee has provided substantial services which benefit the estate. Id. One court denied the trustee compensation, but explained that the denial of fees was premised on the minimal services actually performed by the trustee. In re Woodworth, 70 B.R. 361, 362 (Bankr.N.D.N.Y.1987) (The court, however, awarded fees to the trustee’s attorney who had performed the majority of the services relating to recovery of the automobile.) We adopt the reasoning of In re Berry and hold that the chapter 7 trustee should be compensated on a quantum me- ruit basis in a case that is not fully administered, through no fault of the trustee, where the trustee performs substantial services that result in discovery of assets for the benefit of creditors. Conversely, the court does not envision windfalls for the trustee merely because a debtor converts for reasons unrelated to action by the trustee. We are further convinced that the effect of this decision will be to discourage a debtor’s intentional concealment of assets and encourage a trustee’s diligent discovery of assets. Having found the trustee is entitled to compensation in these rare situations, we must now address the proper procedures for determining the trustee’s compensation. Established Procedures 1. In order to receive a fee, the chapter 7 trustee shall file a detailed, itemized application for compensation by the earlier of thirty days after the conversion or seven days prior to the first scheduled chapter 13 meeting of creditors. 2. Fees will be awarded on a case-by-case basis, and the burden is on the trustee to establish entitlement to the fee through a detailed description of the services provided. The application should demonstrate a nexus between the trustee’s efforts and the uncovering" }, { "docid": "11512661", "title": "", "text": "set for the meeting of creditors to file proofs of claim. The 90-day period has since expired, during which only the one claim for $1331.02 was filed by New York State for taxes owed. Apparently the previous notice that there were no assets in this case chilled the creditors’ interest and prompted continued apathy. The United States trustee’s position that a trustee who neither collects nor disburses any funds is not entitled to any commissions under 11 U.S.C. § 326(a) is based upon a literal reading of this section. Obviously, the trustee did not disburse or turn over any moneys in this case because the debtor immediately converted to Chapter 13 after the trustee blocked his discharge and created. assets which could form the basis for a distribution of moneys in this case. The debtor’s conversion of the case from Chapter 7 to Chapter 13 prevented the Chapter 7 trustee from fully administering the Chapter 7 case, notwithstanding the trustee’s efforts. Although a literal reading of 11 U.S.C. § 326 would suggest that a trustee who does not distribute any moneys is not entitled to any statutory commissions, the courts have generally reasoned that a literal reading of § 326(a) should apply only in fully administered cases and that in cases which were not fully administered, through no fault of the trustee, compensation should be awarded to the trustee on a quantum meruit basis when the trustee performed substantial services but did not disburse any moneys. In re Smith, 51 B.R. 273, 275 (Bankr.D.D.C.1984); In re Pray, 37 B.R. 27 (Bankr.M.D.Fla.1983); In re Rennison, 13 B.R. 951 (Bankr.W.D.Ky. 1981). The trustee in this case is entitled to an award based on quantum meruit. When one considers an award on equitable principles and based on quantum meruit, one must obviously consider the nature and the extent of the services rendered by the trustee. In re Pray, 37 B.R. at 30. In the instant case the trustee created an estate from a no asset case and succeeded in setting aside a fraudulent transfer. The trustee’s position was sustained on appeal. Her services" }, { "docid": "18139235", "title": "", "text": "the Chapter 7 Trustee makes disbursements. Like the court in Rodriguez, this Court also views Section 330 as mandating essentially a quantum meruit approach to trustee compensation. In re Rodriguez, 240 B.R. 912, 914 (Bankr.D.Colo.1999). Section 330 does not, as the court in Colburn supposes, create a mechanism for the compensation of trustees without any maximum limitation. See In re Colburn, 231 B.R. 778, 782-83 (Bankr.D.Or.1999). While Ruby’s compensation might otherwise be reasonable under Section 330, the plain language of Section 326(a) still controls whether Ruby receives any compensation at all. Some courts that permit compensation on a quantum meruit basis have done so when the trustee has uncovered undisclosed assets, acknowledging the extraordinary circumstances that must exist to support an award of compensation. See, e.g., In re Moore, 235 B.R. 414, 417 (Bankr.W.D.Ky.1999), aff'd sub nom. Schilling v. Moore, 286 B.R. 846 (W.D.Ky.2002) (noting that a trustee’s application for compensation must demonstrate the nexus between his efforts and the uncovering of assets). Thus, even if this Court were inclined to adopt the quantum meruit approach, it is undisputed that what occurred in the above-captioned cases was not the uncovering of assets, per se, but rather, the engagement of the Chapter 7 Trustee and the debtors in a contest of the valuation of the assets that the debtors did disclose. The Court would be remiss to fail to address the remaining theories that it has rejected. While it is doubtless that an award of compensation to a diligent Chapter 7 Trustee is often appealing as a matter of equity or fairness, the theories relied upon to support this desirous result, upon reflection, appear to be analytically flawed. With regard to the “multiple” or “composite” trustee theory, this Court is of the opinion, as set forth above, that it is improper to read into the statute a meaning that is not there. See In re Rodriguez, 240 B.R. 912, 915-16 (Bankr.D.Colo.1999) (finding that Section 326(a) referred to a generic, “composite” trustee and to the aggregate of the distributions made by any trustee at any point during the case). For the same" }, { "docid": "1073372", "title": "", "text": "the funeral home filed separate Chapter 7 petitions in June, 1984, and Mr. Armstrong was appointed trustee for each of the cases shortly thereafter. After his appointment, Mr. Armstrong, in characteristic fashion, began to carry out his duties as trustee in the respective cases but his administration of the three cases was cut short when the Debtors, the trustee and other interested parties entered into an omnibus stipulation by which all administrative proceedings, adversary proceedings, and all claims secured and unsecured were settled. By the terms of the agreement filed September 4, 1985 and approved by the court on October 4, 1985, the Tweetens individually became obligated to pay in full all unsecured claims filed in the Tweeten Funeral Home, PC case as well as all administrative expenses incurred in all three cases. As a result of the stipulation no funds came into the hands of the trustee for distribution. Trustee compensation is, by statute, fixed as a percentage of monies disbursed or turned over by a trustee to parties in interest. 11 U.S.C. § 326(a). Despite the statutory language, courts have exercised their equitable power to allow compensation to a trustee on a quantum meruit basis in situations where, although no money was disbursed or turned over by the trustee, he nonetheless performed substantial services to the estate. Matter of Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986); In re Smith, 51 B.R. 273 (Bankr.D.D.C.1984); In re Rennison, 13 B.R. 951 (Bankr.W.D.Ky.1981). The sentiment of these cases is that where a trustee devotes time and effort to a case which is not fully administered through no fault of his, he ought nonetheless receive payment for services rendered. As noted in Rennison, supra, “if section 326 were to be literally applied to such a case, the debtor would have enjoyed, cost free, the benefits of the bankruptcy law.” This court agrees with the views expressed in the foregoing decisions but does not agree that quantum meruit awards should in every case be pegged against the statutory rate set out in section 326. This rate is the maximum rate allowed to a trustee for" }, { "docid": "362174", "title": "", "text": "not to exceed 25 percent on the first $5,000 or less, 10 percent on any amount in excess of $5,000 but not in excess of $50,000, 5 percent on any amount in excess of $50,000 but not in excess of $1,000,000, and reasonable compensation not to exceed 3 percent of such moneys in excess of $1,000,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims. (Emphasis added.) The legislative history emphasizes that § 326(a) does not prescribe appropriate compensation for trustees. “This section simply fixes the maximum compensation of a trustee.... The limits in this section, together with limitations found in section 330, are to be applied as outer limits, and not as grants or entitlements to the maximum fees specified.” H. Rept. No. 95-595 to accompany H.R. 8200, 95th Cong., 1st Sess. (1977) at pp. 327, 328. At least one court has interpreted § 326(a) as literally precluding any compensation to Chapter 7 trustees in converted cases where no moneys have been disbursed or turned over during the Chapter 7 proceedings, beyond the minimum provided in § 330(b). See In re Fischer, 210 B.R. 467 (Bankr.D.Minn.1997). However, I agree with the majority of courts that have considered this issue and have determined that § 326(a) does not preclude Chapter 7 trustee compensation in cases that are dismissed on the debtor’s motion or converted to Chapter 13 prior to completion of Chapter 7 administration. See, e.g., In re Berry, 166 B.R. 932 (Bankr.D.Or.1994); In re Tweeten Funeral Home, PC, 78 B.R. 998 (Bankr.D.N.D.1987); In re Stabler, 75 B.R. 135 (Bankr.M.D.Fla.1987); In re Woodworth, 70 B.R. 361 (Bankr.N.D.N.Y.1987); In re Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986); In re Smith, 51 B.R. 273 (Bankr.D.D.C.1984); In re Pray, 37 B.R. 27 (Bankr.M.D.Fla.1983); In re Flying S Land & Cattle Company, Inc., 23 B.R. 56 (Bankr.C.D.Cal.1982); and In re Rennison, 13 B.R. 951 (Bankr.W.D.Ky.1981). I have come to this conclusion based both upon the language of § 326(a) and its function in the scheme of the Bankruptcy Code." }, { "docid": "1073373", "title": "", "text": "326(a). Despite the statutory language, courts have exercised their equitable power to allow compensation to a trustee on a quantum meruit basis in situations where, although no money was disbursed or turned over by the trustee, he nonetheless performed substantial services to the estate. Matter of Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986); In re Smith, 51 B.R. 273 (Bankr.D.D.C.1984); In re Rennison, 13 B.R. 951 (Bankr.W.D.Ky.1981). The sentiment of these cases is that where a trustee devotes time and effort to a case which is not fully administered through no fault of his, he ought nonetheless receive payment for services rendered. As noted in Rennison, supra, “if section 326 were to be literally applied to such a case, the debtor would have enjoyed, cost free, the benefits of the bankruptcy law.” This court agrees with the views expressed in the foregoing decisions but does not agree that quantum meruit awards should in every case be pegged against the statutory rate set out in section 326. This rate is the maximum rate allowed to a trustee for services rendered and may not necessarily be reflective of what a quantum meruit award should be. The statutory rate is based on a percentage of the dollars distributed without regard for time or effort. A quantum me-ruit award, on the other hand, is based not on the amount of distribution but upon such factors as the nature and extent of the services rendered. In a quantum meru-it application the section 326 rate provides a maximum limit but is not in and of itself the standard by which a quantum meruit award is arrived at. It appears that nearly all of the time devoted by Mr. Armstrong to these cases was in his capacity as attorney for the trustee. In that capacity he submitted a fee application denoting 327.5 hours devoted to the cases between the period October 9,1984 and October 5,1985 — a span of one year. Two hundred thirty-seven hours were consumed in the Tweeten Funeral Home case alone. Assuming the hourly figures are accurate, Mr. Armstrong as attorney for the trustee spent the" }, { "docid": "14609507", "title": "", "text": "is permissive and the percentages provide the maximum fee the trustee may receive based upon “all moneys disbursed or turned over in the case by the trustee ...” Kandel v. Alexander Leasing Corp., 107 B.R. 548, 550 (N.D.Ohio 1988). The court is to determine a reasonable compensation and the maximum fee permitted is not an automatic entitlement. Id.; See also, 2 Collier on Bankruptcy § 326.01-326.02 (15th ed. rev. 1998). The statute, unfortunately, fails to address the appropriate fee in a case where the trustee discovers assets, but is stymied from distribution by a conversion. And conversion is an absolute right accorded debtors under the Bankruptcy Code. 11 U.S.C. § 706. A literal application of section 326(a) would appear to provide that if no funds were disbursed by the trustee to creditors, there are no funds to which the percentage formula may be applied. In re Berry, 166, B.R. 932, 934 (D. Oregon 1994). Most bankruptcy courts addressing this question, however, decline to apply a literal reading of § 326(a) and restrict application of the section to fully administered cases only. Id. See In re Stabler, 75 B.R. 135 (Bankr.M.D.Fla.1987); In re Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986); In re Smith, 51 B.R. 273 (Bankr.D.C.1984); In re Pray, 37 B.R. 27 (Bankr.N.D.Fla.1983). See also, In re Rennison, 13 B.R. 951 (Bankr.W.D.Ky.1981) (concerning voluntary dismissal). Rather, where a case is converted or dismissed, several courts have authorized compensation to the trustee upon a showing that the trustee has provided substantial services which benefit the estate. Id. One court denied the trustee compensation, but explained that the denial of fees was premised on the minimal services actually performed by the trustee. In re Woodworth, 70 B.R. 361, 362 (Bankr.N.D.N.Y.1987) (The court, however, awarded fees to the trustee’s attorney who had performed the majority of the services relating to recovery of the automobile.) We adopt the reasoning of In re Berry and hold that the chapter 7 trustee should be compensated on a quantum me- ruit basis in a case that is not fully administered, through no fault of the trustee, where the trustee" }, { "docid": "12603090", "title": "", "text": "may perform her duties. It is the Debtors’ obligation to assist the Trustee during the administration of the case, and from the Debtors’ proffers, it is clear no such assistance was provided. The Debtors further argue the Trustee is not entitled to fees because no statute authorizes the payment of fees where the Trustee makes no disbursements in a ease. This Court does not agree. The fee limitation set forth in 11 U.S.C. § 326 should not preclude the Trustee in this case from receiving compensation on a quantum meruit basis. Courts have reasoned that 11 U.S.C. § 326 applies to fully administered cases; but, in cases which are. not fully administered, through no fault of the Trustee, compensation should still be awarded the Trustee who performs substantial services, but does not disburse any money. See In re Stabler, 75 B.R. 135 (Bankr.M.D.Fla.1987); In re Pray, 37 B.R. 27 (Bankr.M.D.Fla.1983). “Allowing Chapter 7 trustees fee and expense awards in cases converted to Chapter 13 further prevents unfair treatment of Chapter 7 trustees where the conversion to Chapter 13 was for the purpose of avoiding ‘the consequences of a trustee’s action in locating, identifying and administering assets’ of the estate.” Collins, 210 B.R. at 540, citing In re Wells, 87 B.R. 732, 737 n. 3 (Bankr.N.D.Ga.1988) (additional citations omitted). Lastly, the Debtors contend the fees of Bakst, Cloyd & Bakst, P.A. are unjustified and unreasonable. The Debtors’ position is that neither the post-conversion fees nor the pre-conversion fees are com-pensable. The Debtors argue the post-conversion fees were incurred when the Trustee had no further obligation to the estate. Therefore, the Debtors argue the services were not necessary and the fees for the services are not compensable. Additionally, the Debtors assert the pre-con-version fees, although seemingly authorized by Collins, are objectionable. The Debtors claim Attorney Bakst’s fees include 2.5 hours of travel time to Miami from West Palm Beach which is not com-pensable under the Court’s local rules. Moreover, the Debtors claim Attorney Bakst’s time spent on research (3 hours) is unreasonable because Attorney Bakst is supposed to be a seasoned practitioner" }, { "docid": "9821572", "title": "", "text": "[S]ubject to section [] 326 ... the court may award to a trustee ... (A) reasonable compensation for actual, necessary services rendered ... and (B) reimbursement for actual, necessary expenses. (b)(1) There shall be paid from the filing fee in a case under chapter 7 of this title $45 to the trustee serving in such case, after such trustee's services are rendered. . This section overrides the \"reasonable compensation” that might otherwise be payable to a trustee under Section 330(a): (a) In a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed 25 percent on the first $5,000 or less, 10 percent on any amount in excess of $5,000 but not in excess of $50,000, 5 percent on any amount in excess of $50,000 but not in excess of $1,000,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holder of secured claims (emphasis added). . Compare, e.g., In re Hages, 252 B.R. 789 (Bankr.N.D.Cal.2000) (Section 326 cap separately applied to Chapter 13 trustee and Chapter 7 trustee) with In re Rodriguez, 240 B.R. 912 (Bankr.D.Colo.1999) (aggregates Chapter 7 and Chapter 13 trustee fees in applying section 326 cap); and In re Berry, 166 B.R. 932 (Bankr.D.Or.1994) (allowing the Chapter 7 trustee up to the 326(a) cap based on distributions in the superceding Chapter 13 case on a quantum meruit basis) with In re Colburn, 231 B.R. 778 (Bankr.D.Or. 1999), (rejecting a quantum meruit basis for fees, but determining that the section 326(a) cap is no longer applicable to a Chapter 7 trustee's compensation once a case converts to Chapter 13). . In re Colburn, 231 B.R. at 783; In re Rodriguez, 240 B.R. at 915; In re Hages, 252 B.R. at 793. . In re Berry, 166 B.R. at 935; In re Hages, 252 B.R. at 794. . See, e.g., In re Berry, 166 B.R. at 934; In re Moore," } ]

[ { "docid": "22990167", "title": "", "text": "of the privilege of a permit, among ■winch may be his fitness to handle liquor and his business need for liquor. He must, of course, present a situation which in all respects shows bona fides. Whether the applicant can he trusted properly to exercise the privilege conferred by a permit may depend on a variety of circumstances, as in this case on the quantity of liquor applied for in respect to the uses to which the applicant has represented his intentions to put it and tho improbability that, if obtained, he will apply all of it to the lawful uses he has indicated. In order that the Commissioner may properly perform this important function in tho scheme of preventing the use of liquor for unlawful purposes by regulating its use for lawful purposes, the Act gives him wide discretion. This, of course, means a sound discretion in the legal sense. In answer to the question the applicant has propounded, we hold that his discretion is absolute. Moreover, it “is final and conclusive and not subject to judicial review, at least unless the decision is wholly unsupported by the evidence, or is wholly dependent upon a question of law, or is seen to be clearly arbitrary or capricious.” Ma-King v. Blair, supra; Silberschein v. United States, 266 U. S. 221, 225, 45 S. Ct. 69, 69 L. Ed. 256. Knowing human infirmities and realizing that absolute power thus granted might be abused, the Congress through regulations of the Bureau of Internal Revenue has given an applicant a right to a hearing following a refusal of his application (as held by the District Court of the United States for the Eastern District of Pennsylvania, not here questioned and therefore not now adjudged), and, by express provision of the statute, a right of review by a District Court. It is important to pause and note the exact legal characters#of these two proceedings. At the hearing before a person called a Hearer, the applicant may appear and present evidence to sustain his application and the Commissioner may or may not appear and may produce" } ]

[ { "docid": "13596982", "title": "", "text": "therein. ’ Before any permit is granted the commissioner may require a bond in such form and amount as he may prescribe to insure compliance with the terms of the permit and the provisions of this title. In the event of the refusal by the commissioner of any application for a permit, the applicant may have a review of his decision before a court of equity in the manner provided in section 5 hereof.” This language is inclusive enough to embrace any sort of permit whieh the commissioner is authorized to issue. If it be confined to permits relating to “liquor” in the statutory sense, then there is no provision in the statute allowing judicial review of the commissioner’s refusal to grant a permit for the use of denatured alcohol. It does not seem likely that Congress would wish to- differentiate in this respect between the different classes of permits whieh the Commissioner is authorized to grant.- No reason is suggested for such a differentiation. Moreover, we have recently held that title 2, section 9 (27 USCA § 21), whieh relates to revocation of permits, applies to the revocation of permits to use denatured alcohol. Elsinore Perfume Co. v. Campbell (C. C. A.) 31 F.(2d) 235, cert. denied June 3, 1929 (49 S. Ct. 612, 73 L. Ed. -); accord, Stein v. Andrews, 25 F.(2d) 281 (C. C. A. 3). The language of section 9 is no more in- elusive than that above quoted from section 6. In numerous cases it has been assumed that section 6 does authorize a review of the Commissioner’s action in respect to permits for denatured alcohol. Milillo v. Canfield, 14 F.(2d) 113 (C. C. A. 2); Rock v. Blair, 13 F.(2d) 1004 (D. C. S. D. N. Y.); Solax Drug Co. v. Doran, 27 F.(2d) 522 (C. C. A. 3); Doran v. Eisenberg, 30 F.(2d) 503 (C. C. A. 3); Gautieri v. Sheldon, 7 F.(2d) 408 (D. C. R. I.); Quaker Industrial Alcohol Corp. v. Blair, 19 F.(2d) 235 (D. C. E. D. Pa.). In Ma King Products Co. v. Blair, 271 U. S." }, { "docid": "5637425", "title": "", "text": "CHASE, Circuit Judge (after stating the facts as above). The trial court was lim ited to a review of the proceedings before the Commissioner. National Prohibition Act, tit. 2, § 9 (27 USCA § 21). Unless error in law was found, or the action of the Commissioner was wholly unsupported by the evidence, or arbitrary or capricious, the revocation should not have been disturbed. Qualtop Beverages, Inc., v. Campbell, 31 F.(2d) 266. While the evidence of unlawful diversion of the alcohol was entirely circumstantial, it was sufficient to support the decision revoking the permit, as it tended to show that permittee had not in good faith conformed to the 'law and conditions of the permit, and the extent of its probative force was to be determined by the Commissioner. Ma-King Products Co. v. Blair, 271 U. S. 479-483, 46 S. Ct. 544 (70 L. Ed. 1046); Remick Products v. Mills (C. C. A.) 22 F.(2d) 477; Qualtop Beverages, Inc., v. Campbell, supra. It is claimed, however, that the National Prohihition Act does not apply to denatured alcohol, on the ground that it is not a beverage, and, that, after it is manufactured and prepared for the market, it is excepted from the provisions of the act in express terms to be found in title 2, § 4 (27 USCA § 13). The case of Higgins v. Foster (C. C. A.) 12 F.(2d) 646, is relied on in support of this position. It is true that denatured alcohol “produced and used as provided by laws and regulations now or hereafter in force” (title 2, § 4) is not affected by the provisions of title 2 of the act. The Higgins Case does hold that section 6 of title 2 (27 USCA § 16), which provides for certain permits, does not apply to denatured alcohol. It nevertheless recognizes the fact that -the use of denatured alcohol is regulated by the act, and that a permit for its lawful use is authorized, and holds expressly that- the provisions of title 2, § 9, relate to the revocation of ’permits covering- denatured alcohol. The" }, { "docid": "6432599", "title": "", "text": "WOOLLEY, Circuit Judge. The executors of Mary L. Graupner, holders of a permit to manufacture cereal beverages of lawful alcoholic content, were cited by the Prohibition Administrator for the Western District of Pennsylvania to appear before a hear er and show cause why the permit should not be revoked. The hearer found that the per-mittees had violated the terms of the permit and had not in good faith conformed to the provisions of the National Prohibition Act (27 USCA) and accordingly recommended that the permit be revoked. The Prohibition Administrator approved the findings and revoked the permit. Later he awarded a review of his decision by a reviewer who, after holding that the record justified the hearer’s findings of fact, made a like recommendation. The Prohibition Administrator, acting upon the recommendation of both hearer and reviewer, then definitely revoked the permit. Thereupon the permittees by a bill in equity filed in the District Court under Section 6 of title 2 of the National Prohibition Act (27 USCA § 16) sought a review of the Administrator’s decision. On this review the learned trial court [(D. C.) 23 F. (2d) 947] made its own findings of fact which, opposed to those of the hearer and reviewer, were that the permit-tees had at all times acted in good faith; that their alleged offending conduct was an innocent mistake; and, concluding that the revocation of the permit was under the circumstances too severe a punishment, Hoell v. Mellon (D. C.) 4 F.(2d) 859, 862, and McGill v. Mellon (D. C.) 5 F.(2d) 262, 265, held that the decision of the Commissioner of Internal Revenue (acting through the Prohibition Administrator) should be reversed and the permit restored. The Commissioner took this appeal. As all this occurred after the decision in Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046, yet before the decision by this court in Yudelson v. Andrews, 25 F.(2d) 80, it is evident that the learned trial court, being for the moment unmindful of the character and limit of its jurisdiction in such cases" }, { "docid": "14417459", "title": "", "text": "to 8,595 gallons for that one month. These figures were a matter of record in the office of the prohibition administrator at the time of the application. It is also a fact, known to the Commissioner, that the formula for the tobacco spraying process is one of the easiest of all formulas for specially denatured alcohol to redistill. Of course, if the applicant’s contract with Del Monte were bona fide, these facts would not be of importance in determining his right to a permit, but when the conclusion arrived at is that his alleged contract is not bona fide, they become of a great significance as bearing upon the legitimate needs of the trade, and the probabilities of his using the alcohol for lawful purposes. Third. The applicant refused to comply with a suggestion from the Commissioner that if the permit were to be granted the applicant should notify the Commissioner of his intention to manufacture whenever he intended to do so, and to agree not to manufacture, except in the presence of agents. This the applicant refused to do, but suggested that the government send agents to his plant to remain on duty 24 hours a day (an obviously impossible arrangement). We do not wish to be considered as ruling that the Commissioner has the right to impose this condition upon the granting of any and all permits; but we think, in view of the circumstances surrounding this alleged contract and the strong suspicion of bad faith connected with it, the requirement was reasonable, and the refusal of the applicant to comply may be taken into consideration, with other circumstances of the case. In Ma-King Co. v. Blair, 271 17. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046, the Supreme Court discussed the discretionary powers of the Commissioner in cases involving applications for permits (which, of course, include applications for increased allowances) and said that the court’s authority upon review was “to determine whether, upon the facts and law, the action of the Commissioner is based upon an error of law, or is wholly unsupported by the" }, { "docid": "16053349", "title": "", "text": "no sense a contract; that his duty does not consist in the mere perfunctory signing of a permit form as a ministerial duty, but that it is one requiring the exercise of a sound discretion, whereby he issues a permissive privilege to the applicant; and that this administrative duty is not imposed upon the courts, to decide the eligibility of applicants for this permissive privilege. Nonetheless, the courts are vested with the power and the duty to review the acts of the Commissioner or his agent in the performance of this statutory duty, and may affirm, modify, or reverse his findings upon the facts and law, where his action proceeds from an error of law, is wholly unsupported by the evidence, or is clearly arbitrary and capricious. Ma-King Products Co., Appellant, v. David H. Blair, Commissioner of Internal Revenue, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; Silberschein v. U. S., 266 U. S. 221, 225, 45 S. Ct. 69, 69 L. Ed. 256; Shreveport Drug Co. v. Jackson, Prohibition Director (D. C.) 2 F.(2d) 64, 65; Millstone v. Yellowley (D. C.) 290 F. 855. Here plainly the action of the Commissioner in refusing these permits resulted from an error of law. ■ His agent, the administrator, admits that he acted solely on the assumption that the ordinance of the police jury of the parish of Tangipahoa was a valid and subsisting law of the state, and that he was obliged to take cognizance of it. Under the federal law (R. S. § 721 [28 USCA § 725]) the decisions of the highest court of a state, construing the laws of, that state, form rules of decision for the federal courts within it. By this I am constrained to hold with the Supreme Court of the state of Louisiana that the police jury of Tangipahoa parish had no authority to pass such an ordinance; that it is ultra vires, null, and void. In repeated decisions that court has held that police juries have no general authority to exercise the police powers of the state. In State" }, { "docid": "21821298", "title": "", "text": "CAMPBELL, District Judge. This is an action in equity to review the order of, the Prohibition Administrator and Commissioner of Internal Revenue in revoking and canceling the permit of the plaintiff. The plaintiff was cited for revocation of his permit, upon the following grounds: “1. On December 9, 1926, you did give or cause to be given to government agents, the sum of $200.00, with intent to influence, or induce them to do an act in violation of their lawful duty, to wit, to submit to the Federal Prohibition Administrator, District No. 2, New York City, New York, a favorable inspection report covering your operations under your permit 8- D. A. 20725, all of which constitutes bad faith in the conduct of your operations under said permit.” That $200 was given by the plaintiff to said agents was testified to by the agents and admitted by the plaintiff. The agents testified to the facts and circumstances under which the money was given and from them the only reasonable inference is that it was intended as a bribe. The plaintiff contends that the agents re quested money and that he gave it to them, not as a bribe, but as a Christmas present, first offering them $25 each, and finally, at their request, giving them $100 eaeh. The plaintiff contends that the agents induced him against his will to give them the money, but, although some days elapsed after the transaction before any steps were taken by the prohibition authorities, be made no complaint. The story of the agents, if believed, amply supports the findings, and in my opinion is the more reasonable story. This court is not vested with the administrative function of determining whether or not the permit should be revoked, but its authority is to determine whether, upon the facts and the law, the action of the Commissioner is based upon an error of law, or is wholly unsupported by the evidence, or clearly arbitrary or capricious. Ma-King Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046. A review of the administrative" }, { "docid": "7699003", "title": "", "text": "court un - limited. With this contention I cannot agree. Judge Inch, in Hoell v. Mellon (D. C.) 4 F.(2d) 859, stated that “the review' feature must not be overlooked.” Prom the reading of section 5, this position seems well taken. In Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046, the Supreme Court said: “It is clear that Congress, in providing that an adverse decision of the Commissioner might be reviewed in a court of equity, did not undertake to vest in the court the administrative function of determining whether or not the permit should be granted; but that this provision is to be construed, in the light of the well-established rule in analogous eases, as merely giving the court authority to determine whether, upon the facts and law, the action of the Commissioner is based upon an error of law, or is wholly unsupported by the evidence or clearly arbitrary or capricious.” It therefore seems that my authority in this ease is to correct errors at law and de termine whether the decision is wholly unsupported by the evidence or clearly arbitrary or capricious. The case was submitted upon the record had before the hearing officer. No complaint is made regarding the admission or rejection of evidence, and no exceptions to rulings have been mentioned for consideration. The position of complainant is that the evidence is not sufficient in weight and character to form a basis for the decision rendered. The complainant, a New York corporation, for some time prior to April 12, 1927, owned and operating a dealcoholizing plant in connection with its business of manufacturing cereal beverages at Ft. Edward, N. Y. The evidence shows it to be the only cereal beverage manufacturing plant in that vicinity. It had a permit, issued in accordance with the provisions of the National Prohibition Act, and was working thereunder. On or about April 18, 1927, an order was served on complainant, directing it to show cause why its permit should not be revoked and canceled on the ground that it had" }, { "docid": "16059339", "title": "", "text": "that he had intoxicating liquor unlawfully in his possession. The Commissioner of Internal Revenue . acting on the report of the hearer revoked the permit. The permittee then filed this bill in the District Court under section 9 of title 2 of the National Prohibition Act (27 USCA § 21) for a review of the Commissioner’s decision. Although the ease was tried before this court’s decision in Yudelson v. Andrews, 25 F.(2d) 80, it arose and was tried after the decision by the Supreme Court in Ma-King Co. V. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; Id. (C. C. A.) 3 F.(2d) 936. The learned trial court, sensing the precise meaning of that decision, did not undertake to retry and decide the questions of fact which had been submitted to and decided by the Commissioner in administering the law, but found in almost the exact words of the decision that the record disclosed evidence which supported the Commissioner’s finding and therefore justified his revocation of the permit. And so this court, in reviewing the decision of the trial court on the record showing the grounds for the report of the hearer and the decision of the Commissioner, will follow strictly the law of the Ma-King Case, as it did in the Yudelson Case, and, in the absence of any question of law, will do no more than examine the evidence and discover whether the action of the Commissioner in revoking the permit and the action of the trial court in sustaining his decision \"is wholly unsupported by the evidence or [is] clearly arbitrary or capricious.” Bearing on these matters there are two groups of facts, the first having to do with liquor manifestly not withdrawn under the permit and concealed not in the store but under a stairway near by and accessible to any one in the store. Whether the permittee at all times lived up stairs with his mother and whether his brother in charge of the store at the time of the raid was so related to him in business as to" }, { "docid": "5990153", "title": "", "text": "unchallenged. This means that, in the language of the National Prohibition Act,, the order of revocation should be affirmed. This is accordingly done, and the bill of complaint dismissed.” The appellant contends that the alcohol in the tanks was the same twenty barrels which he received in the morning, and that not only could it have been, but actually was, transferred from the barrels to the tanks between 10 o’clock in the morning and 2 o’clock in the afternoon. The appellant does not refuse to assume the burden of establishing this fact, but, on the contrary, is praying for an opportunity to do so. We are not concerned with the sufficiency of the evidence which he may produce, but we are concerned with whether or not he be given a reasonable opportunity to present it. It was intimated that appellant had this opportunity on appeal before the District Court, but such is not the case, for the appeal is confined to the record made before the commissioner. It is his “decision” of which the statute grants a review and that on the charge contained in the order. The record on which the commissioner bases his “decision” is made and fixed before it is taken to the District Court for a review. Otherwise, it could not be determined whether the action of the commissioner “is based upon an error of law, or is wholly unsupported by the evidence or clearly arbitrary or capricious.” Yudelson v. Andrews et al. (C. C. A. 3) 25 F.(2d) 80; Silberschein v. United States, 266 U. S. 221, 225, 45 S. Ct. 69, 69 L. Ed. 256; Ma-King Co. v. Blair, 271 U. S. 479, 483, 46 S. Ct. 544, 70 L. Ed. 1046. Consequently the only opportunity the appellant had to assume this burden, to present his evidence to show that the alcohol was actually transferred from the barrels to the tanks within the time he claims, was before the hearer at the very time counsel was cited to appear before the United States District Court. When the hearer refused to grant a continuance, and" }, { "docid": "16059340", "title": "", "text": "this court, in reviewing the decision of the trial court on the record showing the grounds for the report of the hearer and the decision of the Commissioner, will follow strictly the law of the Ma-King Case, as it did in the Yudelson Case, and, in the absence of any question of law, will do no more than examine the evidence and discover whether the action of the Commissioner in revoking the permit and the action of the trial court in sustaining his decision \"is wholly unsupported by the evidence or [is] clearly arbitrary or capricious.” Bearing on these matters there are two groups of facts, the first having to do with liquor manifestly not withdrawn under the permit and concealed not in the store but under a stairway near by and accessible to any one in the store. Whether the permittee at all times lived up stairs with his mother and whether his brother in charge of the store at the time of the raid was so related to him in business as to indicate his knowledge of and control over the hidden liquors was a question which the Commissioner had to decide in order properly to determine whether the permittee was a fit person longer to be intrusted with the privilege of withdrawing and selling liquor. Ma-King Co. v. Blair, 271 U. S. 479, 482, 46 S. Ct. 544, 70 L. Ed. 1046. The facts are, in our opinion, sufficient to sustain his finding that the permittee was not such a person. The second group has to do with the record of withdrawals and sales which under the Treasury Department the. permittee was required to keep and make available to inspection. The inspection made by the prohibition officers disclosed liquor withdrawn and in part not accounted for. An analysis of the records — those first found showing a shortage and those tardily produced to explain the shortage — reveals facts which support the Commissioner’s finding of a violation of the bookkeeping regulations and sustain his conclusion that the permittee had not in good faith conformed to the provisions" }, { "docid": "16059341", "title": "", "text": "indicate his knowledge of and control over the hidden liquors was a question which the Commissioner had to decide in order properly to determine whether the permittee was a fit person longer to be intrusted with the privilege of withdrawing and selling liquor. Ma-King Co. v. Blair, 271 U. S. 479, 482, 46 S. Ct. 544, 70 L. Ed. 1046. The facts are, in our opinion, sufficient to sustain his finding that the permittee was not such a person. The second group has to do with the record of withdrawals and sales which under the Treasury Department the. permittee was required to keep and make available to inspection. The inspection made by the prohibition officers disclosed liquor withdrawn and in part not accounted for. An analysis of the records — those first found showing a shortage and those tardily produced to explain the shortage — reveals facts which support the Commissioner’s finding of a violation of the bookkeeping regulations and sustain his conclusion that the permittee had not in good faith conformed to the provisions of the National Prohibition Act and to the regulations promulgated thereunder. Facts of this character being present, we cannot find that the decision of the Commissioner was clearly arbitrary or capricious. Ma-King Co. v. Blair, 271 U. S. 479, 483, 46 S. Ct. 544, 70 L. Ed. 1046; Silberschein v. United States, 266 U. S. 221, 225, 45 S. Ct. 69, 69 L. Ed. 256; Yudelson v. Andrews (C. C. A.) 25 F.(2d) 80. The decree is affirmed." }, { "docid": "13596983", "title": "", "text": "(27 USCA § 21), whieh relates to revocation of permits, applies to the revocation of permits to use denatured alcohol. Elsinore Perfume Co. v. Campbell (C. C. A.) 31 F.(2d) 235, cert. denied June 3, 1929 (49 S. Ct. 612, 73 L. Ed. -); accord, Stein v. Andrews, 25 F.(2d) 281 (C. C. A. 3). The language of section 9 is no more in- elusive than that above quoted from section 6. In numerous cases it has been assumed that section 6 does authorize a review of the Commissioner’s action in respect to permits for denatured alcohol. Milillo v. Canfield, 14 F.(2d) 113 (C. C. A. 2); Rock v. Blair, 13 F.(2d) 1004 (D. C. S. D. N. Y.); Solax Drug Co. v. Doran, 27 F.(2d) 522 (C. C. A. 3); Doran v. Eisenberg, 30 F.(2d) 503 (C. C. A. 3); Gautieri v. Sheldon, 7 F.(2d) 408 (D. C. R. I.); Quaker Industrial Alcohol Corp. v. Blair, 19 F.(2d) 235 (D. C. E. D. Pa.). In Ma King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046, the Commissioner’s refusal to grant a permit to operate a denaturing plant was reviewed by the Supreme Court, without any question as to the court’s jurisdiction, though the only statutory provision on which jurisdiction could rest is that portion of section 6 now under consideration. We conclude, therefore, that the contention that the District Court lacked jurisdiction must be rejected. On the merits little need be said. The Commissioner indicated that he was not willing to trust the plaintiff with so large a monthly withdrawal. The plaintiff’s associates did not inspire confidence. That the Commissioner was willing to leave unchallenged his permit for 100 gallons does not demonstrate that he was worthy of confidence for whatever amount he might ask. We cannot say the Commissioner’s action was so arbitrary or capricious that a court should reverse it. Ma King Produets Co. v. Blair, supra. Judgment affirmed." }, { "docid": "5990154", "title": "", "text": "grants a review and that on the charge contained in the order. The record on which the commissioner bases his “decision” is made and fixed before it is taken to the District Court for a review. Otherwise, it could not be determined whether the action of the commissioner “is based upon an error of law, or is wholly unsupported by the evidence or clearly arbitrary or capricious.” Yudelson v. Andrews et al. (C. C. A. 3) 25 F.(2d) 80; Silberschein v. United States, 266 U. S. 221, 225, 45 S. Ct. 69, 69 L. Ed. 256; Ma-King Co. v. Blair, 271 U. S. 479, 483, 46 S. Ct. 544, 70 L. Ed. 1046. Consequently the only opportunity the appellant had to assume this burden, to present his evidence to show that the alcohol was actually transferred from the barrels to the tanks within the time he claims, was before the hearer at the very time counsel was cited to appear before the United States District Court. When the hearer refused to grant a continuance, and counsel was confronted with the conflict between this hearing and a trial in the District Court, he naturally chose to perform his . duty in the court. The result is that the appellant has been deprived of his day in court. He has not had an opportunity to present the evidence which he says will demonstrate that the same alcohol in question was actually transferred from the barrels to the tanks within the time * he claimed it was. The denial by the hearer of a reasonable opportunity to the appellant, to present this evidence brings the case within the principle announced by the Supreme Court in the above cases, which requires a reversal of the decree. Accordingly, the decree is reversed, with directions to reinstate the bill and return the record to the commissioner, with instructions to give the permittee a reasonable opportunity to present the evidence upon which he relies to rebut the charges made against him." }, { "docid": "16059338", "title": "", "text": "of his brother. The permittee was arrested and a citation issued charging him, first, with unlawful possession of intoxicating liquor, and, next, with failure to account for all liquor withdrawn under the permit. Two hearings were held. At each hearing the permittee produced a record different from what was found at the raid to explain the shortage. The first left a shortage of a half gallon of alcohol still unexplained; the second accounted for the entire amount. These records were of a character and were produced under circumstances that raised valid doubts'as to their correctness. Evidence that the permittee’s mother and brother occupied the upper floors of the house and sharply controverted evidence that he, though owning and operating the store, lived elsewhere was introduced to shift responsibility for the hidden liquor from him to his brother. The hearer stated in his report that the testimony of the brothers was not worthy of belief and found as a fact that the permittee had failed to account for alcohol and whisky withdrawn under his permit and that he had intoxicating liquor unlawfully in his possession. The Commissioner of Internal Revenue . acting on the report of the hearer revoked the permit. The permittee then filed this bill in the District Court under section 9 of title 2 of the National Prohibition Act (27 USCA § 21) for a review of the Commissioner’s decision. Although the ease was tried before this court’s decision in Yudelson v. Andrews, 25 F.(2d) 80, it arose and was tried after the decision by the Supreme Court in Ma-King Co. V. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; Id. (C. C. A.) 3 F.(2d) 936. The learned trial court, sensing the precise meaning of that decision, did not undertake to retry and decide the questions of fact which had been submitted to and decided by the Commissioner in administering the law, but found in almost the exact words of the decision that the record disclosed evidence which supported the Commissioner’s finding and therefore justified his revocation of the permit. And so" }, { "docid": "16053348", "title": "", "text": "premises is delegated to the federal prohibition administrator, who is within the jurisdiction of this court, and who is properly joined herein as the Commissioner’s official agent. - He, as such, is the one who actually acted upon the applications of the plaintiffs. To hold that his acts are not subject to review, because the Commissioner cannot be served with process and will not voluntarily appear, would amount to a denial of due process to the plaintiffs, who are subjected to the authority of the Commissioner only through the administrator, vicariously representing the former. Upon this consideration alone the Commissioner should be bound by the act of his agent, the administrator, in' a proceeding of this character under the statute, the purpose and intent of which would otherwise be defeated. The courts have uniformly recognized that, whilst the terms of the National Prohibition Act shall be liberally construed, to the end that the use of intoxicating liquor as a beverage may be prevented, they also recognize that the permit issued by the Commissioner is in no sense a contract; that his duty does not consist in the mere perfunctory signing of a permit form as a ministerial duty, but that it is one requiring the exercise of a sound discretion, whereby he issues a permissive privilege to the applicant; and that this administrative duty is not imposed upon the courts, to decide the eligibility of applicants for this permissive privilege. Nonetheless, the courts are vested with the power and the duty to review the acts of the Commissioner or his agent in the performance of this statutory duty, and may affirm, modify, or reverse his findings upon the facts and law, where his action proceeds from an error of law, is wholly unsupported by the evidence, or is clearly arbitrary and capricious. Ma-King Products Co., Appellant, v. David H. Blair, Commissioner of Internal Revenue, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; Silberschein v. U. S., 266 U. S. 221, 225, 45 S. Ct. 69, 69 L. Ed. 256; Shreveport Drug Co. v. Jackson, Prohibition Director" }, { "docid": "7553416", "title": "", "text": "of equity to interfere would seem to be limited in the same way; that is, to inquire if the action of the Administrator or Commissioner is based upon an error of law, is wholly unsupported by the evidence, or is clearly arbitrary or capricious. Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; Remick Products Co. v. Mills (C. C. A.) 22 F.(2d) 477. It may well be asked: Why has this discretion been given and for what purpose should it be exercised? While Congress, by the National Prohibition Act (27 USCA), expressly had in mind the facilitating of “an ample supply” of alcohol and the “promotion of its use” in “lawful” and law-abiding “industries,” it was scarcely contemplated that a large unlawful trade would arise in the shape of diversion of alcohol from lawful to unlawful business, to such an extent as to seriously obstruct or defeat the other important purpose of the act, to wit, the suppression of the sale of alcohol for beverage purposes. That it was contemplated to some extent, however, is shown by the discretionary power given the Commissioner and his Administrator as to' the right of revocation and curtailment of supply. The Administrator and Commissioner therefore is placed in a most responsible position. By arbitrary and capricious action, he may seriously harm, if indeed he may not destroy, a lawful business. On the other hand, he can by carelessness or timidity, in effect, nullify the efforts to prevent the sale of beverage alcohol. The duty therefore of such an officer is to endeavor to promote the lawful industry while protecting the government from those who would violate the law. It is a position calling for the highest integrity and capacity. A great quantity of regulations have come into existence to accomplish this. Sometimes it might appear that there are too many regulations and not enough confidence in the integrity and capacity of Commissioner and Administrator charged with this important duty. These innumerable regulations furnish a fertile field for litigation and dispute; yet, after all, it would" }, { "docid": "7699002", "title": "", "text": "McCampbell, as acting prohibition administrator of this district, revoked the permit, and the-statutes seem to provide for a review by the court without the necessity of making the director a party. In this proceeding there aro two stenographic records, one made by a stenographer from the prohibition administrator’s office, and the other by Welsh & Hunger, public stenographers. These records, while at variance in some particulars, are not at variance on any material points, so that a study of either will disclose substantially the samo facts. I am not acquainted with the work and accuracy of the stenographer who appeared for the prohibition administrator. Welsh & Hunger, in addition to being certified stenographers, are the stenographers i'01* the United States court in this district, and I feel no hesitancy in following their transcript of the proceeding. Complainants urge that this is a “trial do novo,” that the court is not limited as in a bill of review, that it is the first opportunity complainant has to receive a judicial determination, and thus comes into this court un - limited. With this contention I cannot agree. Judge Inch, in Hoell v. Mellon (D. C.) 4 F.(2d) 859, stated that “the review' feature must not be overlooked.” Prom the reading of section 5, this position seems well taken. In Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046, the Supreme Court said: “It is clear that Congress, in providing that an adverse decision of the Commissioner might be reviewed in a court of equity, did not undertake to vest in the court the administrative function of determining whether or not the permit should be granted; but that this provision is to be construed, in the light of the well-established rule in analogous eases, as merely giving the court authority to determine whether, upon the facts and law, the action of the Commissioner is based upon an error of law, or is wholly unsupported by the evidence or clearly arbitrary or capricious.” It therefore seems that my authority in this ease is to correct errors" }, { "docid": "14417460", "title": "", "text": "the applicant refused to do, but suggested that the government send agents to his plant to remain on duty 24 hours a day (an obviously impossible arrangement). We do not wish to be considered as ruling that the Commissioner has the right to impose this condition upon the granting of any and all permits; but we think, in view of the circumstances surrounding this alleged contract and the strong suspicion of bad faith connected with it, the requirement was reasonable, and the refusal of the applicant to comply may be taken into consideration, with other circumstances of the case. In Ma-King Co. v. Blair, 271 17. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046, the Supreme Court discussed the discretionary powers of the Commissioner in cases involving applications for permits (which, of course, include applications for increased allowances) and said that the court’s authority upon review was “to determine whether, upon the facts and law, the action of the Commissioner is based upon an error of law, or is wholly unsupported by the evidence, or clearly arbitrary or capricious.” The position of the applicant in this case is based upon the use of the Supreme Court of the phrase “wholly unsupported by the evidence.” In effect the applicant contends that the rule announced by the Supreme Court means that in order to justify the refusal of the Commissioner to approve an application, there must be substantive evidence produced either at a hearing before the Commissioner or before the court of some fact which will justify such disapproval. He denies the right of the Commissioner to consider matters within his knowledge not adduced in the form of evidence, and he denies the right of the Commissioner to making a finding of bad faith upon the facts shown in this case. In the absence of positive evidence he argues that the court must find that the Commissioner’s act is “wholly unsupported by the evidence,” within the meaning of the opinion in the Ma-King Case. I do not construe the language referred to as sustaining the complainant’s contention. To do so" }, { "docid": "6432600", "title": "", "text": "decision. On this review the learned trial court [(D. C.) 23 F. (2d) 947] made its own findings of fact which, opposed to those of the hearer and reviewer, were that the permit-tees had at all times acted in good faith; that their alleged offending conduct was an innocent mistake; and, concluding that the revocation of the permit was under the circumstances too severe a punishment, Hoell v. Mellon (D. C.) 4 F.(2d) 859, 862, and McGill v. Mellon (D. C.) 5 F.(2d) 262, 265, held that the decision of the Commissioner of Internal Revenue (acting through the Prohibition Administrator) should be reversed and the permit restored. The Commissioner took this appeal. As all this occurred after the decision in Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046, yet before the decision by this court in Yudelson v. Andrews, 25 F.(2d) 80, it is evident that the learned trial court, being for the moment unmindful of the character and limit of its jurisdiction in such cases as defined in the Ma-King decision. and being without whatever aid may be had from our analysis of that decision in the Yudelson Case, reviewed the case as though it were on trial de novo, found facts for itself, and accordingly rendered its decision on the merits of the controversy, that is, on a question whether or not the permit should be revoked —a purely administrative matter — when, as it is now definitely determined, its sole function was' to find, under the rule in analogous cases, Silberschein v. United States, 266 U. S. 221, 225, 45 S. Ct. 69, 69 L. Ed. 256, whether upon the facts and law the decision of the Commissioner was based upon error of law, or was wholly unsupported by the evidence or clearly arbitrary or capricious. The Ma-King Case. As no question of law was raised the sole question before the trial court was not whether the permit should be revoked but whether there was any evidence that sustained the Commissioner’s exercise of discretion' in revoking it. The" }, { "docid": "21821299", "title": "", "text": "a bribe. The plaintiff contends that the agents re quested money and that he gave it to them, not as a bribe, but as a Christmas present, first offering them $25 each, and finally, at their request, giving them $100 eaeh. The plaintiff contends that the agents induced him against his will to give them the money, but, although some days elapsed after the transaction before any steps were taken by the prohibition authorities, be made no complaint. The story of the agents, if believed, amply supports the findings, and in my opinion is the more reasonable story. This court is not vested with the administrative function of determining whether or not the permit should be revoked, but its authority is to determine whether, upon the facts and the law, the action of the Commissioner is based upon an error of law, or is wholly unsupported by the evidence, or clearly arbitrary or capricious. Ma-King Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046. A review of the administrative record in this case convinces me that the findings, are not wholly unsupported by the evidence, and .that they are not arbitrary or capricious. The discretionary power of the administrator cannot be controlled or directed by the consequences of the actions of grand or petty juries in criminal prosecutions directed against the permittee. Salvatore Caserta, doing business as Apex Technical Products Co., v. Mills, 28 F.(2d) 637, opinion of Judge Knox, D. C., S. D. of N. Y., August 2,1927. Therefore the fact that the grand jury in this district refused to indict the plaintiff is not controlling. There was sufficient evidence to support the revocation, and it must he sustained. A decree may be entered in favor of the defendants against the plaintiff, dismissing the complaint on the merits, with costs." } ]

[ { "docid": "16009074", "title": "", "text": "his plea with the military judge, the appellant indicated that to prevent the victim of the robbery from later identifying him and his friends, the only thing to do was to kill the man; that when he grabbed the victim around the head and put the knife to the victim’s throat his purpose was to cut his throat; that he was trying to kill the victim when he put the knife to his throat; that when the victim moved down in his seat and attempted to protect himself the appellant then stabbed the victim several times with the intent to kill him; and that in the stipulation of fact, the appellant stated he wanted to end the victim’s life. Although the military judge did not specifically inform the appellant during the providency inquiry that “the act was done with the specific intent to kill unlawfully, that is, to kill without justification or excuse” as suggested in the then current Military Judges’ Guide (DA Pam 27-9, para. 4-2, note 4 (1969) (as changed)), there can be little- doubt that the appellant understood and appreciated the unlawfulness of his actions. The word “murder,” both in legal and general use, carries a connotation of killing a human being without justification or excuse. To suggest otherwise would be wholly unreasonable. Under the circumstances of this case, we believe that the military judge’s inquiry satisfies the requirements of United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), and confirms in an objective manner the basis of the appellant’s understanding at the time of his plea. See United States v. Crouch, 11 M.J. 128 (C.M.A.1981). Accordingly, the findings of guilty and the sentence are affirmed. Senior Judge FULTON and Judge COHEN concur." } ]

[ { "docid": "10938453", "title": "", "text": "the “accused ... sets up matter inconsistent with the plea, or if it appears that he entered the plea improvidently or through lack of understanding as to its meaning and effect.” Article 45(a), UCMJ. In order to permit reviewing authorities to make this determination the United States Court of Military Appeals established the follow ing basic requirements to determine providence: [T]he record of trial must reflect not only that the elements of each offense charged have been explained to the accused but also that the military trial judge or the president has questioned the accused about what he did or did not do and what he intended (where this is pertinent), to make clear the basis for a determination by the military trial judge or the president whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty. United States v. Care, 40 C.M.R. 247, 253 (C.M.A.1969) (citations omitted). In order to determine whether the requirements of Care, supra, have been met, the entire providency inquiry must be examined from its four corners. See United States v. Crouch, 11 M.J. 128, 130 (C.M.A.1981). Turning to the case before us, the military judge correctly advised the appellant of the elements of each of the four offenses alleged in the Specifications of Charge II and specifically outlined the evidence required to prove each separate specification. In the third element of the offense of indecent acts with a child, he advised the accused that the acts must be determined to be “indecent.” With regard to the two specifications alleging indecent liberties with a child under the age of sixteen years, he also advised the appellant the third element of those offenses required the act to also be indecent. In each specification he advised the appellant of the specific facts alleged to have constituted the indecent acts. The military judge did not specifically define the term “indecent acts” as set forth in the Manual for Courts-Martial, United States, 1984 [hereinafter M.C.M., 1984]. Paragraph 90(c) of the Manual defines “indecent” as “that form of immorality relating" }, { "docid": "12120322", "title": "", "text": "case, required proof that the appellant committed the indecent acts “with intent to gratify [his] ... sexual desires.” Manual for Courts-Martial, United States, 1984, Part IV, para. 87b(l)(d) [hereinafter MCM, 1984]; United States v. Bender, 30 M.J. 815, 818 (A.C.M.R.1990). Before accepting a plea of guilty, the military judge must conduct a searching and detailed inquiry of the accused to determine if he understands his plea, if it is entered voluntarily, and if the accused is in fact guilty of the charged offenses. United States v. Davenport, 9 M.J. 364 (C.M.A. 1980); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Where an accused’s responses during the providence inquiry suggest a possible defense, the military judge must explain the elements of that defense to the accused. Rule for Courts-Martial 910(e) discussion [hereinafter R.C.M.]; United States v. Johnson, 25 M.J. 553, 554 (A.C.M.R.1987). Voluntary intoxication, however, is not a defense. R.C.M. 916(1)(2); United States v. Morgan, 33 M.J. 1055, 1058 (A.C.M.R.1991); United States v. Bell, 34 M.J. 937, 948 (A.F.C.M.R.1992). Instead, evidence of any degree of voluntary intoxication may be introduced for the purpose of raising a reasonable doubt as to the existence of specific intent. R.C.M. 916(1)(2). Voluntary intoxication is the description of the strategy of contesting the adequacy of proof on the element of intent. United States v. Bell, 34 M.J. at 948. We have examined the providence inquiry in this case with great care, and we find no reason to set aside or reduce the findings with respect to the two specifications of indecent acts with a child. The appellant’s responses during the inquiry on these two offenses clearly and often indicated that he had the intent to gratify his sexual desires. The contents of the stipulation of fact were consistent with this intent. Although evidence of voluntary intoxication was offered, we find that it was not sufficient to undermine the military judge’s determination that the appellant had the specific intent to gratify his sexual desires. Accordingly, we find that the appellant’s pleas of guilty to the two specifications of indecent acts with a child were" }, { "docid": "17135662", "title": "", "text": "the accused admitted previously that he was not entrapped into committing the offense and was in fact guilty of distribution of marijuana. Before accepting a plea of guilty, the military judge must conduct a searching and detailed inquiry of the accused to determine if he understands his plea, if it is entered voluntarily, and if the accused is in fact guilty. United States v. Davenport, 9 M.J. 364 (C.M.A.1980); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). If any defense is raised by the accused, the military judge should explain the defense to the accused and should not accept the plea of guilty unless the accused admits facts which negate the defense. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 910(e) discussion. In order to set a plea aside, there must be some substantial conflict with the pleas of guilty. United States v. Stewart, 29 M.J. 92 (C.M.A.1989); United States v. Hebert, 1 M.J. 84, 86 (C.M.A.1975). Where a possible defense is raised during the inquiry, the military judge must insure that the defense is not available to an accused. United States v. Jemmings, 1 M.J. 414 (C.M.A.1976). If an accused sets up matters inconsistent with his guilty plea after entry of that plea, such conflict must be resolved. United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973); United States v. Timmins, 21 U.S.C.M.A. 475, 45 C.M.R. 249 (1975). In the case before us, appellant raised the possible defense of entrapment. Although he disavowed the defense during the providence inquiry, he returned to it during the presentencing phase of the trial. We believe this was in substantial conflict with his plea of guilty. Appellant’s unsworn statement bothers us, as it appears to have bothered the military judge. The military judge should have reopened the providence inquiry to settle this matter. From the record, we cannot conclude that appellant was convinced of his guilt of the offense. Consequently, we hold that appellant’s plea of guilty to the offense of distribution of marijuana was improvident. Our decision does not impact on the remaining offense to which" }, { "docid": "16187786", "title": "", "text": "DECISION KASTL, Senior Judge: Upon pleas of guilty, Staff Sergeant Luby was convicted of four drug-related offenses — conspiracy to introduce marijuana into a military installation, wrongful introduction of marijuana into a military aircraft, and use and possession of marijuana, in violation of Articles 81 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 934. His sentence is a bad conduct dis charge, confinement at hard labor for three months, reduction to airman basic, and a reprimand. I On appeal the accused contends that his guilty plea to conspiracy was improvident. In the guilty plea inquiry, the military judge explained the elements of conspiracy. He failed to immediately instruct on the elements of the substantive offense which was the object of the conspiracy— viz., wrongful introduction of marijuana into a military installation. The accused, citing United States v. Pretlow, 13 M.J. 85 (C.M.A. 1982), argues that the judge erred, requiring disapproval of the finding of guilty as to the conspiracy offense. The government responds that the elements of the substantive offense were explained a moment later when the judge advised on the elements of the offense of wrongful introduction of marijuana into a military aircraft. We hold that the military judge did not err in his guilty plea inquiry. In United States v. Crouch, 11 M.J. 128, 129-130, the Court of Military Appeals noted that it had long rejected a “structured, formulistic interpretation” to the inquiry required by United States v. Care, 18 U.S.C.M.A. 536, 40 C.M.R. 247 (1969), and instead examined each guilty plea to ascertain if the accused was adequately advised. United States v. Kilgore, 21 U.S.C.M.A. 35, 44 C.M.R. 89 (1971); United States v. Wimberly, 20 U.S.C.M.A. 50, 42 C.M.R. 242 (1970). See generally, United States v. Davenport, 9 M.J. 364, 366-367 (C.M.A. 1980). Our sister courts have discarded a myopic, hypertechnical approach to guilty plea inquiries. For example, they have held that omission of an element of an offense may be non-prejudicial. United States v. Otterbeck, 50 C.M.R. 7 (N.C.M.R. 1974); United States v. Burton, 43 C.M.R. 732 (A.C.M.R. 1971). They have also ruled" }, { "docid": "16332459", "title": "", "text": "aside. III Appellant was convicted of introducing hashish into a military installation and, in a separate specification, of possessing this same hashish on the same date and on the same installation. Under such circumstances the introduction includes the possession; accordingly, the finding of guilty of possession should be set aside and the specification dismissed. United States v. Miles, 15 M.J. 431 (C.M.A.1983); United States v. Roman-Luciano, 13 M.J. 490 (C.M.A.1982). IV The decision of the United States Army Court of Military Review is reversed as to specification 2 of Charge II, specification 1 of Charge III, and the sentence. The findings of guilty of those specifications are set aside and the specifications are dismissed. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Military Review for reassessment of the sentence based on the remaining findings of guilty. Judge FLETCHER concurs. COOK, Judge (dissenting): The problem here, as is so often true, is the way the case lies before us. Since the accused pleaded guilty, the “evidence” must be taken from his responses during the providence inquiry. Naturally, this is far from that evidence produced in a contested case. We cannot make “reasonable doubt” judgments as to the merits of the evidence. The test we must apply is whether the responses of the accused “make clear the basis for a determination by the military ... judge ... whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty,” United States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969), and that the accused did not set up matters “inconsistent with the plea” or make it appear “that he had entered the plea ... improvidently or through lack of understanding of its meaning and effect.” Article 45(a), Uniform Code of Military Justice, 10 U.S.C. § 845(a); United States v. Pretlow, 13 M.J. 85 (C.M.A.1982). As we said in Pretlow: Stated another way, “a guilty plea [must] be in accordance with actual facts,” United States v. Davenport, 9 M.J. 364, 367" }, { "docid": "17068724", "title": "", "text": "for Courts-Martial 910(e) [hereinafter R.C.M.]. No specific format is prescribed for the inquiry into the plea of guilty. See, e.g., United States v. Kilgore, 21 U.S.C.M.A. 35, 44 C.M.R. 89, 1971 WL 12456 (1971). Rather, the inquiry must establish that the accused understands the elements of the offenses to which he has pleaded guilty, and admits facts which “make clear the basis for a determination by the military trial judge ... whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.” United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247, 253, 1969 WL 6059 (1969). Even if the mili tary judge fails to identify or explain all the elements of the offense, a plea of guilty is not improvident if the accused admits facts which establish that all the elements are true. United States v. Jones, 34 M.J. 270 (C.M.A. 1992). If the accused raises matters which are inconsistent with the plea, including affirmative defenses, the military judge may not accept the plea without resolving the inconsistency. United States v. Adams, 33 M.J. 300 (C.M.A.1991); United States v. Clark, 28 M.J. 401 (C.M.A.1989); United States v. Jemmings, 1 M.J. 414 (C.M.A.1976). Once again, no particular format or procedure is required for resolving such matters. Id. However, If any potential defense is raised by the accused’s account of the offense or by other matter presented to the military judge, the military judge should explain such a defense to the accused and should not accept the plea unless the accused admits facts which would negate the defense____ [Ultimately] the accused must be convinced of, and able to describe all the facts necessary to establish guilt. R.C.M. 910(e) discussion (emphasis added). Simply put, a finding of guilty based on a guilty plea must rest on facts admitted by the accused, on the record, which establish that the accused is in fact guilty. “A military judge’s decision to accept a guilty .plea is reviewed for an abuse of discretion.” United States v. Eberle, 44 M.J. 374, 375 (1996). Once the military judge has" }, { "docid": "17135661", "title": "", "text": "to obtain marijuana for him. He agreed on the sixth request. He had purchased marijuana several times for himself but had never obtained it for anyone else. When the military judge asked why appellant purchased for another this time, he stated that part of the reason was because he was asked by a friend. He would purchase for a friend if asked. After the military judge explained the entrapment defense to appellant, appellant agreed that he was only provided the opportunity to commit the offense. He did not distribute the marijuana in anticipation of making money but accepted $10.00 when offered after delivering it. Later, during an unsworn statement pri- or to sentencing, appellant returned to his position that he agreed to get marijuana for the informant only after repeated requests. Although asked, he refused to make subsequent distributions. In addition, his wife testified that appellant had received numerous calls at home from the informant. The impact of this testimony on the court members must have concerned the military judge. He instructed the court that the accused admitted previously that he was not entrapped into committing the offense and was in fact guilty of distribution of marijuana. Before accepting a plea of guilty, the military judge must conduct a searching and detailed inquiry of the accused to determine if he understands his plea, if it is entered voluntarily, and if the accused is in fact guilty. United States v. Davenport, 9 M.J. 364 (C.M.A.1980); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). If any defense is raised by the accused, the military judge should explain the defense to the accused and should not accept the plea of guilty unless the accused admits facts which negate the defense. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 910(e) discussion. In order to set a plea aside, there must be some substantial conflict with the pleas of guilty. United States v. Stewart, 29 M.J. 92 (C.M.A.1989); United States v. Hebert, 1 M.J. 84, 86 (C.M.A.1975). Where a possible defense is raised during the inquiry, the military judge must insure" }, { "docid": "8415278", "title": "", "text": "military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea.” In order to establish an adequate factual predicate for a guilty plea, the military judge must elicit “factual circumstances as revealed by the accused himself [that] objectively support that plea[.]” United States v. Davenport, 9 MJ 364, 367 (C.M.A.1980). It is not enough to elicit legal conclusions. The military judge must elicit facts to support the pleas of guilty. United States v. Outhier, 45 MJ 326, 331 (1996). The record of trial must reflect not only that the elements of each offense charged have been explained to the accused, but also “make clear the basis for a determination by the military trial judge ... whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.” United States v. Care, 18 USCMA 535, 541, 40 CMR 247, 253 (1969). Upon appellate review, this Court will not overturn a guilty plea unless there is a substantial basis in law and fact for questioning the providence of the plea. United States v. Russell, 50 M.J. 99, 100 (C.A.A.F.1999); United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). We will consider the whole record, including references to a stipulation of fact, to find that a guilty plea inquiry is adequate. See, e.g., United States v. Sweet, 42 M.J. 183 (C.A.A.F.1995). Looking at the entire record in this case, there is no discussion with Appellant as to whether he intended to steal more than $100 in merchandise from the Powerzone on June 21. There is no reference to the value of this merchandise in the stipulated facts. The only basis that can be found is the following statement of the military judge, after he listed the elements of larceny in regard to Charge 1, Specification 1: Okay, Numerous specifications on this charge sheet would normally require me to advise you again and again of the crime— the elements and the definitions associated with that crime." }, { "docid": "8235180", "title": "", "text": "M.J. 511, 512 (A.C.M.R.1982), pet. denied, 16 M.J. 125 (C.M.A.1983) (“an otherwise provident plea of guilty may be with drawn after conviction to correct a manifest injustice”). During the providency inquiry, the military judge explained the elements of wrongful appropriation to the appellant, to include the element of wrongful taking and its required criminal state of mind. Appellant testified under oath that he understood the elements of the offense; that they correctly described what he did; that all his withdrawals were made against insufficient funds; that he was pleading guilty not only in hope of receiving a more lenient sentence by virtue of the terms of his pretrial agreement, but because he believed in his own mind that he was in fact guilty; and, rather than stating that he believed he had received a loan from the banking institution or that the institution had consented to his taking of its funds, appellant testified, not inconsistently, that he believed what he had done was wrong. Furthermore, in the Stipulation of Fact received in evidence at trial, appellant specifically acknowledged that he did not have overdraft protection for his account. Accordingly, we conclude that appellant was properly found guilty incident to his knowing and voluntary pleas of guilty made under oath. The findings of guilty and the sentence are affirmed. . United States v. Care, 40 C.M.R. 247 (C.M.A.1969). . Appellant has not raised the issue of inadequacy of counsel. In the absence of such an allegation, we will presume that trial defense counsel fully and fairly apprised appellant of both the meaning and effect of a plea of guilty. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Haston, 21 M.J. 559 (A.C.M.R.1985); United States v. Davis, 20 M.J. 1015 (A.C.M.R.1985). . When an accused sets up matter inconsistent with a plea of guilty, the plea must be rejected. Article 45, UCMJ, 10 U.S.C. § 845; United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980). . In our view, appellant’s admission that his actions were wrongful forecloses his argument on appeal that he" }, { "docid": "8235179", "title": "", "text": "as provident when an accused pleads guilty to a specification which properly alleges an offense, and the Care “inquiry of the accused indicates not only that the accused believes he is guilty but also that the factual circumstances as revealed by the accused himself objectively support [the] plea....” United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980). However, since the providence of a guilty plea is to be determined on the basis of matter adduced at the trial, this court will not examine matter outside the record of trial to determine the providence of a plea challenged on appeal. Id.; but cf. United States v. Davis, 3 M.J. 430, 431 n. 1 (C.M.A.1977) (matter outside trial record may be considered when effectiveness of counsel is questioned). Moreover, we note that absent a showing that a plea of guilty was not knowingly and intelligently made, a providently made plea of guilty is binding as to both the law and the facts. United States v. Dusenberry, 49 C.M.R. 536, 540 (C.M.A.1975). Cf. United States v. Zieran, 15 M.J. 511, 512 (A.C.M.R.1982), pet. denied, 16 M.J. 125 (C.M.A.1983) (“an otherwise provident plea of guilty may be with drawn after conviction to correct a manifest injustice”). During the providency inquiry, the military judge explained the elements of wrongful appropriation to the appellant, to include the element of wrongful taking and its required criminal state of mind. Appellant testified under oath that he understood the elements of the offense; that they correctly described what he did; that all his withdrawals were made against insufficient funds; that he was pleading guilty not only in hope of receiving a more lenient sentence by virtue of the terms of his pretrial agreement, but because he believed in his own mind that he was in fact guilty; and, rather than stating that he believed he had received a loan from the banking institution or that the institution had consented to his taking of its funds, appellant testified, not inconsistently, that he believed what he had done was wrong. Furthermore, in the Stipulation of Fact received in evidence at trial," }, { "docid": "14885235", "title": "", "text": "that the evidence did not support a conviction of communicating indecent language because the language Appellant used “was clearly calculated or intended to express his rage, not any sexual desire or moral dissolution.” Id. There was a dissent in Brinson pointing out that MCM, Part IV, paragraph 89.c, “provides for at least two definitions of ‘indecent language,’ either of which can be the basis for a conviction.” Brinson, 49 M.J. at 368 (Crawford, J., joined by Gierke, J., dissenting in part and concurring in the result). The dissent stated the second definition of “indecent language” found in paragraph 89.c “provides that indecent language includes language that is ‘grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting ñatee, or its tendency to incite lustful thought.’ ” Id. Accordingly, the dissent would have found that appellant’s language in Brinson would fit within this second definition of “indecent language.” Notwithstanding the disagreement in Brinson, the majority view stated the law defining obscene matter at the time of Appellant’s court-martial. The clear and unequivocal holding of Brinson was that only language “calculated to corrupt morals or excite libidinous thoughts” was obscene. See French, 31 M.J. at 60. As Appellant preferred a guilty plea, the military judge had the duty to apply this precedent, that is, to accurately inform Appellant of the nature of his offense and elicit from him a factual basis to support his plea. See United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). An essential aspect of informing Appellant of the nature of the offense is a correct definition of legal concepts. The judge’s failure to do so may render the plea improvident. See United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F.2003)(holding plea improvident due to erroneous definition of child pornography); United States v. Pretlow, 13 M.J. 85, 88-89 (C.M.A.1982)(holding plea improvident where a military judge failed to define the substantive elements of conspiracy to commit robbery, a complex offense). But such an error in advising an accused does not always render a guilty plea improvident. Where the" }, { "docid": "12108521", "title": "", "text": "opposed to possession of a smoking device with a specific intent to use it. Thus he not only misled appellant but failed to establish the factual basis for a violation of the subject regulation. In United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), the Court of Military Appeals required that the military judge inquire of the accused into the facts and circumstances of the act charged in order to establish a factual basis for his determination of guilt. The factual circumstances, as revealed by the accused himself, must objectively support his plea. United States v. Davenport, 9 M.J. 364 (CMA 1980). Intent, not possession, is the gravamen of the offense in appellant’s case. The inquiry of the military judge fell short and established only simple possession of the smoking device. The required specific intent to use the device for smoking marihuana was not established in the inquiry. Thus the military judge failed to comply with Care. As that is the sole responsibility of the military judge, establishment by the defense counsel that the required intent was present and its significance understood by the appellant does not suffice. The majority opinion relies on the Court of Military Appeals’ decision in United States v. Crouch, 11 M.J. 128 (CMA 1981), in its conclusion that the military judge’s inquiry was adequate because it established appellant’s possession of the “Big Hit” smoking device with the knowledge that he had a duty to obey the regulation. This reliance is misguided. In Crouch the inquiry clearly established a factual basis that the appellant there intended to aid and abet the criminal acts of his co-actors. The issue in that case was not the failure to establish a factual basis upon which the guilty plea could be accepted, but was whether the failure of the military judge to specifically inquire about his intent without having defined the law of criminal responsibility as an aider and abettor to the appellant rendered his plea improvident. Finally, I note that the specification alleges “wrongful possession” and that it could be argued that the appellant’s acknowledgment that his" }, { "docid": "16313880", "title": "", "text": "problems, we made arrangements to contact each other and each of us would take turns picking each other up and providing transportation when transportation — some mechanical failure or problem beyond our control on our transportation, sir. Without inquiring further into the circumstances surrounding this absence, the military judge proceeded to impose the 'sentence indicated. Article 45(a) of the Code, 10 U.S.C. § 845(a), prescribes: If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty. (Emphasis added). To ensure full compliance with the intent of Article 45 that a guilty plea be knowing and voluntary, this Court has required that before a military judge accepts an accused’s guilty plea, he conduct an inquiry wherein he must advise the accused of certain rights which his plea would waive and of the elements of the offense to which he has tendered his plea. United States v. Care, 18 U.S.C.M.A. 535,40 C.M.R. 247 (1969). Additionally, the inquiry must elicit from the accused the facts and circumstances surrounding the act charged in order to establish a factual basis for the judge’s finding that the accused is, in fact, guilty, as he has pleaded. United States v. Davenport, 9 M.J. 364 (C.M.A.1980). However, if at some time during the proceedings the accused sets up matters which are inconsistent with the facts stated in support of his proffered plea of guilty, then the plea must be rejected. Article 45, 10 U.S.C. § 845, supra; United States v. Davenport, supra; United States v. Moglia, 3 M.J. 216 (C.M.A. 1977). Where [an] inconsistent matter is set up, the judge has the duty to inquire into the circumstances and, if the accused persists in his statements, to reject the plea. United States v." }, { "docid": "1865774", "title": "", "text": "substance. Again, that you actually knew you attempted to distribute the substance, that you actually knew that the substance you attempted to distribute was marijuana or of a contraband nature, and that the distribution, if completed, would have been wrongful. Record at 194. The Appellant then admitted to the military judge that he had agreed to buy marijuana for a fellow sailor, accepted $300 from that sailor to make the purchase, and drove off in his car with the intent to consummate the sale. Shortly thereafter, the Appellant’s car was stopped by law enforcement agents, and the Appellant was apprehended. No marijuana was ever purchased. The Appellant now asserts that his plea was improvident because the military judge failed to adequately explain the elements of attempted wrongful distribution of marijuana. DISCUSSION For this Court to find a plea of guilty to be knowing and voluntary, the record of trial “must reflect” that the elements of “each offense charged have been explained to the accused” by the military judge. United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247 (1969). See Art. 45(a), UCMJ, 10 U.S.C. § 845(a) (2002); R.C.M. 910(c)(1). If the military judge fails to do so, he commits reversible error, unless “it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty.” United States v. Jones, 34 M.J. 270, 272 (C.M.A.1992). Rather than focusing on a technical listing of the elements of an offense, this Court looks at the context of the entire record to determine whether an accused is aware of the elements, either explicitly or inferentially. Id.; United States v. Pretlow, 13 M.J. 85, 88 (C.M.A.1982); United States v. Kilgore, 21 C.M.A. 35, 37, 44 C.M.R. 89 (1971). The elements of attempt are: (1) That the accused did a certain overt act; (2) That the act was done with specific intent to commit a certain offense under the code; (3) That the act amounted to more than mere preparation; and (4) That the act apparently tended to effect the commission of the intended" }, { "docid": "1117246", "title": "", "text": "and is “not inconsistent with facts developed during the providency inquiry.” United States v. Cannon, 29 M.J. 549, 555 n. 4 (A.F.C.M.R.1989), petition denied, 30 M.J. 116 (C.M.A.1990). See also United States v. Williams, 6 M.J. 611, 613 (A.C.M.R.1978) (“In Wimberly, the record clearly reflected that the military judge explained the elements of the offense charged (felony murder) and the elements of the related offense of robbery, therefore, the stipulation of fact was used only in satisfying the requirement of Care for an interrogation into the facts of the offense.”). Nothing requires that during the providence inquiry the accused re-state the facts contained in a stipulation of fact before those facts may be considered as support for the guilty pleas. Essential facts may be established virtually exclusively from the stipulation without questioning the accused about its specific contents. For example, in United States v. Roller, 37 M.J. 1093 (N.M.C.M.R.1993) (en banc), this Court concluded that appellant’s gross negligence resulted in the loss of national defense information when a moving company employee discovered the information in appellant’s household goods shipment. This essential fact was contained in a stipulation of fact that supplemented an extensive factual inquiry on the record, although the portion of the stipulation containing this information was not specifically addressed on the record by the military judge or the accused. The Court concluded that this fact could be considered in finding a factual basis for the guilty pleas. Similarly, in United States v. Brown, 30 M.J. 907, 911 (A.C.M.R.1990), the accused pled guilty to possession of drugs with intent to distribute them. The military judge elicited from the accused on the record that he possessed the drugs and their quantity. Neither the military judge’s questions nor the accused’s responses addressed the accused’s intent to distribute the drugs. The Court found that the providence inquiry met the standards of Care, writing: Although the military judge did not elicit from the mouth of the accused the magic words that appellant intended to distribute the cocaine he possessed, appellant was clearly advised of each of the elements of the offense, he admitted" }, { "docid": "16187787", "title": "", "text": "a moment later when the judge advised on the elements of the offense of wrongful introduction of marijuana into a military aircraft. We hold that the military judge did not err in his guilty plea inquiry. In United States v. Crouch, 11 M.J. 128, 129-130, the Court of Military Appeals noted that it had long rejected a “structured, formulistic interpretation” to the inquiry required by United States v. Care, 18 U.S.C.M.A. 536, 40 C.M.R. 247 (1969), and instead examined each guilty plea to ascertain if the accused was adequately advised. United States v. Kilgore, 21 U.S.C.M.A. 35, 44 C.M.R. 89 (1971); United States v. Wimberly, 20 U.S.C.M.A. 50, 42 C.M.R. 242 (1970). See generally, United States v. Davenport, 9 M.J. 364, 366-367 (C.M.A. 1980). Our sister courts have discarded a myopic, hypertechnical approach to guilty plea inquiries. For example, they have held that omission of an element of an offense may be non-prejudicial. United States v. Otterbeck, 50 C.M.R. 7 (N.C.M.R. 1974); United States v. Burton, 43 C.M.R. 732 (A.C.M.R. 1971). They have also ruled that misstatement of an element can be non-prejudicial. United States v. Jeffers, 47 C.M.R. 803 (N.C.M.R. 1973); United States v. Peoples, 43 C.M.R. 656 (A.C.M.R. 1971). The present case involves not misstated or omitted elements, but rather a delayed discussion. Given the precedents cited, the issue need not detain us long. Here, the substantive offense was spelled out correctly for the accused — albeit not in the next instant. We reject the notion that failure to immediately instruct on the elements of that substantive offense was fatal. Furthermore, in examining the record, we find that the judge adequately explained the elements of the underlying substantive offense of wrongful introduction of marijuana, the object of the conspiracy, when he explained the separate charge. In this case, the record makes it abundantly clear that the crimes were committed, the accused did them, and he so admitted in a lengthy, accurate, painstaking inquiry. See United States v. Otterbeck, supra, 50 C.M.R. at 11. Therefore, we are convinced that the record reflects the accused was adequately informed of his" }, { "docid": "14885236", "title": "", "text": "court-martial. The clear and unequivocal holding of Brinson was that only language “calculated to corrupt morals or excite libidinous thoughts” was obscene. See French, 31 M.J. at 60. As Appellant preferred a guilty plea, the military judge had the duty to apply this precedent, that is, to accurately inform Appellant of the nature of his offense and elicit from him a factual basis to support his plea. See United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). An essential aspect of informing Appellant of the nature of the offense is a correct definition of legal concepts. The judge’s failure to do so may render the plea improvident. See United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F.2003)(holding plea improvident due to erroneous definition of child pornography); United States v. Pretlow, 13 M.J. 85, 88-89 (C.M.A.1982)(holding plea improvident where a military judge failed to define the substantive elements of conspiracy to commit robbery, a complex offense). But such an error in advising an accused does not always render a guilty plea improvident. Where the record contains “factual circumstances” that “objectively support” the guilty plea to a more narrowly construed statute or legal principle, the guilty plea may be accepted. See United States v. James, 55 M.J. 297, 300 (C.A.A.F.2001); United States v. Shearer, 44 M.J. 330, 334 (C.A.A.F.1996). We have stated that in evaluating the provideney of a plea, the entire record should be considered. See United States v. Jordan, 57 M.J. 236, 238-39 (C.A.A.F.2002). To prevail, Appellant has the burden to demonstrate a “substantial basis in law and fact for questioning the guilty plea.” United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). In the present case, the provideney inquiry was deficient because the military judge used an erroneous definition of “obscene.” The judge’s definition of obscene is in large part taken from the definition of “indecent” in the Article 134 offense of indecent actions with another. The explanation of this offense states, “ ‘Indecent’ signifies that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends" }, { "docid": "1101515", "title": "", "text": "articulated as follows: (1) something is omitted in the guilty plea inquiry, such as an advisement or a particular question, and/or (2) the accused sets up matter that is legally or factually inconsistent with the plea of guilty. If the claim of error concerns the former, that is, an advisement or the scope of the questioning, a Court of Military Review will examine the entire record to ascertain whether the accused was adequately advised and his admissions reasonably support the conclusion that the plea is factually accurate. See United States v. Jones, 34 M.J. 270 (C.M.A.1992); United States v. Walker, 34 M.J. 264 (C.M.A.1992); United States v. Crouch, 11 M.J. 128 (C.M.A.1981). As to the latter claim of error, the record must contain some reasonable ground for finding an inconsistency between the plea and the accused’s statements, and reversal will not follow from the mere possibility of a conflict. United States v. Logan, 22 C.M.A. 349, 47 C.M.R. 1 (1973); United States v. Logan, 31 M.J. 910 (A.F.C.M.R.1990); United States v. Tichy, 50 C.M.R. 526 (N.C.M.R.1975). “The bottom line ... is that rejection of the plea requires that the record of trial show a ‘substantial basis’ in law and fact for questioning the guilty plea.” United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). In this case the appellant was informed of the meaning of the term “military property,” acknowledged his understanding of that term, and admitted the two checks were “military property.” Record at 17, 26. Nonetheless, the appellant asserts something was omitted from the guilty plea inquiry, that is, facts, not legal conclusions, that support the checks were “military property.” More particularly, he asserts the U.S. Treasury checks must be of a “unique military nature” or were “put to a military function,” before they qualify as “military property,” and in the absence of such a showing in the record, the plea to larceny of “military property” is improvident. Appellant’s Brief at 2-3 (citing United States v. Schelin, 15 M.J. 218 (C.M.A.1983), United States v. Spradlin, 33 M.J. 870 (N.M.C.M.R.1991), and United States v. Ford, 30 M.J. 871 (A.F.C.M.R.1990))." }, { "docid": "15879563", "title": "", "text": "(citing United States v. Gallegos, 41 M.J. 446 (C.A.A.F.1995)). A military judge may not accept a guilty plea unless he makes “such inquiry of the accused” that satisfies him of a “factual basis for the plea.” R.C.M. 910(e). See United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969) (“[T]he record of trial ... must reflect ... that the military trial judge ... has questioned the accused about what he did or did not do, and what he intended____”). “[T]he accused must admit every element of the offense(s) to which the accused pleads guilty.” R.C.M. 910(e) Discussion. See United States v. Barton, 60 M.J. 62, 64 (C.A.A.F.2004) (“[The] factual predicate is sufficiently established if ‘the factual circumstances as revealed by the accused himself objectively support that plea.’ ”) (quoting United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980)); see also United States v. Jordan, 57 M.J. 236, 239 (C.A.A.F.2002) (finding that “ ‘mere conclusions of law recited by an accused ... are insufficient to provide a factual basis for a guilty plea’ ”) (quoting United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.1996)). According to the explanation accompanying Article 77, UCMJ, to be guilty as a principal under an aiding and abetting theory, a person must: (i) Assist, encourage, advise, instigate, counsel, command, or procure another to commit, or assist, encourage, advise, counsel, or command another in the commission of the offense; and (ii) Share in the criminal purpose of design. In some circumstances, inaction may make one liable as a party, where there is a duty to act. If a person ... has a duty to interfere in the commission of an offense, but does not interfere, that person is a party to the crime if such a noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator. Manual for Courts-Martial, United States pt. IV, para. l(b)(i), (ii) (2005 ed.) (MCM)', see United States v. Crouch, 11 M.J. 128 (C.M.A.1981) (upholding an aiding and abetting conviction where appellant had a duty to act because, while performing guard duty, he failed" }, { "docid": "12120321", "title": "", "text": "two acts, “We went out drinking, me and my wife and some friends.” Additionally, the stipulation of fact used by the military judge during the inquiry included two references to the consumption of alcohol on that same occasion, in part, as follows: (1) “The Giroux’s had been out for the evening and returned [home]. SPC S and W arrived a short time later. All had been drinking and were intoxicated. The accused provided beers to [the baby-sitter and her sister]”; and (2) “Alcohol was usually consumed by the participants prior to and during the [sex] game____” Later, the appellant restated his alcohol consumption during the presenteiacing phase of the trial when the following colloquy took place between the appellant and his trial defense counsel: Q: Do you think alcohol was a factor in this case? A: Yes, sir, definitely. Q: Do you think these things would have happened if you had not been drinking? A: No, I don’t, sir. The offense of indecent acts with a child is a specific intent crime that, in this case, required proof that the appellant committed the indecent acts “with intent to gratify [his] ... sexual desires.” Manual for Courts-Martial, United States, 1984, Part IV, para. 87b(l)(d) [hereinafter MCM, 1984]; United States v. Bender, 30 M.J. 815, 818 (A.C.M.R.1990). Before accepting a plea of guilty, the military judge must conduct a searching and detailed inquiry of the accused to determine if he understands his plea, if it is entered voluntarily, and if the accused is in fact guilty of the charged offenses. United States v. Davenport, 9 M.J. 364 (C.M.A. 1980); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Where an accused’s responses during the providence inquiry suggest a possible defense, the military judge must explain the elements of that defense to the accused. Rule for Courts-Martial 910(e) discussion [hereinafter R.C.M.]; United States v. Johnson, 25 M.J. 553, 554 (A.C.M.R.1987). Voluntary intoxication, however, is not a defense. R.C.M. 916(1)(2); United States v. Morgan, 33 M.J. 1055, 1058 (A.C.M.R.1991); United States v. Bell, 34 M.J. 937, 948 (A.F.C.M.R.1992). Instead, evidence of any" } ]

[ { "docid": "22537847", "title": "", "text": "1130. The new language is based on the statement in Durland, that the statute reaches “everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future.” 161 U. S., at 313. However, instead of the phrase “everything designed to defraud” Congress used the words “[any scheme or artifice] for obtaining money or property.” After 1909, therefore, the mail fraud statute criminalized schemes or artifices “to defraud” or “for obtaining money or property by means of false or fraudulent pretenses, representation, or promises . . . .” Because the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property. This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly. See, e. g., United States v. Clapps, 732 F. 2d 1148, 1152 (CA3 1984); United States v. States, 488 F. 2d 761, 764 (CA8 1973). As the Court long ago stated, however, the words “to defraud” commonly refer “to wronging one in his property rights by dishonest methods or schemes,” and “usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.” Hammerschmidt v. United States, 265 U. S. 182, 188 (1924). The codification of the holding in Durland in 1909 does not indicate that Congress was departing from this common understanding. As we see it, adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property. We believe that Congress’ intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes. The Court has often stated that when" } ]

[ { "docid": "15940629", "title": "", "text": "Elec. Co., 62 Fla. 460, 57 So. 243, 244-45 (Fla.1911) (holding creditors could reach trust property, despite presence of spendthrift clause, where the beneficiaries possessed absolute control over the property). Where a trust is self-fund ed by a beneficiary, however, there is an issue as to whether the trust’s spendthrift provision is valid as against creditors of the settlor-beneficiary. We conclude it is not, and the beneficiary’s interest is subject to alienation by her creditors. 1. Validity of the ICRUA’s Spendthrift Provision as Against Appellee’s Creditors Spendthrift trusts are defined under Florida law as “those trusts that are created with a view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self-protection.” Croom, 57 So. at 244 (emphasis added); see also Waterbury, 32 So.2d at 605 (“A spendthrift trust is one that is created with the view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self protection.”). As impliedly recognized by the definition of spendthrift trusts set forth in Croom, Florida law will not protect assets contained within a spendthrift trust to the extent the settlor creates the trust for her own benefit, rather than for the benefit of another. See In re Witlin, 640 F.2d 661, 663 (5th Cir. Unit B 1981) (holding, under Florida law on spendthrift trusts, debtor’s interest in his Keogh plan was not exempt from his bankruptcy estate where the debtor was both the beneficiary and the settlor of the plan); In re Wheat, 149 B.R. 1003, 1004-05 (Bankr.S.D.Fla.1992) (holding, under Florida law on spendthrift trusts, debtor’s deferred compensation plan was not exempt from his bankruptcy estate where it was self-funded); In re Williams, 118 B.R. 812, 815 (Bankr.N.D.Fla.1990) (holding, under Florida law on spendthrift trusts, debtor’s interests in his employer’s thrift plan was not exempt from his bankruptcy estate where it was self-settled); John G. GRImsley, FloRIda Law of TRusts § 15-5(b) (4th ed. 1993) (“A settlor cannot create for himself a spendthrift trust to" }, { "docid": "18560201", "title": "", "text": "its earlier ruling that ERISA does not shelter pension funds from inclusion in the bankruptcy estate unless the pension plan qualifies under state law as a “spendthrift trust.” In re Goff, 706 F.2d at 587. A spendthrift trust is a type of trust “created to provide a fund for the maintenance of a beneficiary, with only a certain portion of the total amount to be distributed at any one time.” Id. at 580. The Texas Property Code authorizes spendthrift trusts and specifies the criteria for their creation. Tex.Prop.Code Ann. § 112.035(a), (b) & (c) (Vernon 1984). Like all other states that recognize spendthrift trusts, Texas forbids a person to place his own assets in trust and then, through a “spendthrift clause” or other form of restraint, to shield the assets from the claims of his current and future creditors. Id. § 112.035(d). Under Texas law, “[a] person is not allowed to make provision for his own support or comfort to the prejudice of his creditors.” In re Brooks, 844 F.2d 258, 263 (5th Cir.1988). The debtors contend that all ERISAqualified retirement plans other than Keogh plans qualify under Texas law as spendthrift trusts. Noting that employee benefit plans under ERISA are trusts, the debtors argue that ERISA section 1056(d)(1) — the antialienation provision — is a valid spendthrift clause which converts an otherwise ordinary trust into a spendthrift trust. This Court, however, has previously rejected this argument. In In re Brooks, the Court recognized that “self-settled” trusts are not spendthrift trusts under Texas law. 844 F.2d at 263. In- terpreting the term “self-settled” broadly, the Court reasoned that a beneficiary who enjoys “access to and control over” a pension plan is a settlor of the plan, even though another person or entity nominally created the plan. Id. The debtor in In re Brooks, a medical doctor, held an interest in an ERISA-quali-fied pension plan which his professional association established and administered. Along with the other thirty-two members of the professional association, the debtor could borrow from the plan and determine the manner in which his funds in the plan would" }, { "docid": "15712056", "title": "", "text": "§ 1341. See Caldwell, 302 F.3d at 406. Only the second type of scheme or artifice is at issue in this appeal, as Ratcliff was charged with a scheme to defraud Livingston Parish of the money and property represented by “the powers, privileges, salary, and other benefits” of his elected office. We do not dispute the Government’s contention that a salary and other financial employment benefits can constitute “money or property” under the statute; as the Eighth Circuit put it when discussing a scheme to defraud an employer of wages, “[m]oney is money, and ‘money’ is specifically mentioned in the statutory words.” United States v. Granberry, 908 F.2d 278, 280 (8th Cir.1990) (emphasis omitted); see also Pasquantino v. United States, 544 U.S. 349, 356-57, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) (recognizing that money in the public treasury is the government’s “money” for purposes of the mail fraud statute). But the real question before us is whether the indictment alleges a scheme to defraud the alleged victim— Livingston Parish — of that money. See United States v. Rico Indus., Inc., 854 F.2d 710, 713 (5th Cir.1988) (“The mail fraud statute protects only against schemes or artifices to defraud the property rights of citizens.”). As the Supreme Court has explained, “the words ‘to defraud’ commonly refer ‘to wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane, or overreaching.’ ” McNally v. United States, 483 U.S. 350, 359, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (quoting Hammersckmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924)). Accordingly, in determining whether the indictment alleges a scheme to defraud Livingston Parish of money or property, we must look to whether the alleged scheme is one to deprive the parish of money or property through misrepresentations, thereby wronging the parish’s property rights. See id. at 360, 107 S.Ct. 2875 (holding that the mail fraud statute is “limited in scope to the protection of property rights”); see also Cleveland v. United States, 531 U.S. 12, 19," }, { "docid": "21143649", "title": "", "text": "reached by his or her creditors.” In the Matter of Shearn Moody, Jr. (In re Moody), 837 F.2d 719, 723 (5th Cir.1988). Pursuant to § 541(c)(2), the property of a spendthrift trust is excluded from the bankruptcy estate if those assets are protected from the beneficiary’s creditors under state law. Shurley v. Texas Commerce Bank-Austin, N.A. (In re Shurley), 115 F.3d 333, 336-37 (5th Cir.1997). Under Texas law, which is applicable to this case, a spendthrift provision in a trust protects trust property from the beneficiary’s creditors unless “the settlor is also a beneficiary of the trust.” Tex. PROP.Code § 112.035(d); see also Shurley, 115 F.3d at 337-38. This rule is known as the “self-settlor” “rule.” As this court has recognized, the rationale behind the rule is obvious: “a debtor should not be able to escape claims of his creditors by himself setting up a spendthrift trust and naming himself as beneficiary.” Shurley, 115 F.3d at 337. A. Issues Raised and Argued by Ingalls 1. Illusory or Sham Trust Ingalls argues that the bankruptcy and district courts erred because they stopped short of declaring that the Trust is a sham or illusory trust and that the Trust property is totally included in the bankruptcy estate. We disagree. In Westerfeld v. Huckaby, 462 S.W.2d 324, 326 (Tex.Civ.App.1970), the court stated that “[t]he doctrine of illusory trusts in its inception and in its application applies only to marital property situations.” On appeal, the Texas Supreme Court affirmed, holding that “the court of civil appeals correctly held that an application of the illusory trust doctrine, as enunciated in Land v. Marshall, 426 S.W.2d 841 (Tex.1968), is limited to instances in which a non-consenting spouse’s property is used to fund a trust.” Westerfeld v. Huckaby, 474 S.W.2d 189, 192 (Tex.1971). To date, the Texas courts have not expanded the doctrine beyond the marital property context. Accordingly, the bankruptcy court did not err in concluding that the illusory trust doctrine is so limited under Texas law and therefore is not available in this non-marital case. 2. Elements and Burden of Proof in Tracing and Recovering" }, { "docid": "15940647", "title": "", "text": "serve as an independent ground for invalidating a spendthrift provision. See, e.g., In re Spenlinhauer, 182 B.R. at 363 (declining to address beneficiaries' control over trust where the trust was self-settled and, therefore, the spendthrift provision was ineffective on that basis alone); In re Wheat, 149 B.R. at 1004 (“However, the Debtor's degree of control is irrelevant in this case since one cannot create a spendthrift trust for oneself in Florida.''); Walro v. Striegel (In re Walro), 131 B.R. 697, 701 (Bankr.S.D.Ind.1991) (holding self-settlement prevented agreement from qualifying as a spendthrift trust, although beneficiary did not have any control over assets). Although some cases appear to intertwine the issues of self-settlement and control, those cases are distinguishable because their facts supported invalidity of the spendthrift trusts at issue under both grounds. See, e.g., Fehlhaber v. Fehlhaber, 850 F.2d 1453, 1455 (11th Cir.1988) (citing In re Witlin and other cases for the proposition that a settlor who creates a trust for his own benefit cannot protect his interest under the trust from his creditors, but also stating a settlor who exercises dominion over the trust cannot protect the trust from creditors); Lawrence v. Chapter 7 Trustee (In re Lawrence), 251 B.R. 630, 641-42 (Bankr.S.D.Fla.2000) (invalidating spendthrift provision where trust was self-settled and the beneficiary exercised control over the trust), aff d, 279 F.3d 1294 (11th Cir.2002); In re Cattafi, 237 B.R. 853, 855-56 (Bankr.M.D.Fla.1999) (same). In those cases, there was no need to address the issues as separate grounds for invalidation. . Some limited exceptions to this general rule exist which do not apply in this case. For example, creditors of a settlor-beneficiary who has reserved only a right to income may reach both the income and the corpus of a trust if the trustee has discretion to invade the corpus for the benefit of the settlor. See, e.g., Miller v. Ohio Dept. of Human Servs., 105 Ohio App.3d 539, 664 N.E.2d 619, 621 (Ohio App.1995) (holding entire amount of trust was available to Medicaid even though settlor was given only income for life, where the trustee in his discretion could" }, { "docid": "4715220", "title": "", "text": "spendthrift trust where beneficiary has power to terminate plan and receive assets); In re Goldberg, 59 B.R. 201, 203 (Bankr.N.D. Okla.1986) (Keogh plan not a spendthrift trust where beneficiary could terminate at will). Compare Vogel, supra, 78 B.R. at 195 (Keogh plan qualifies as spendthrift trust where debtor cannot withdraw funds without wife’s consent); and In re Strehlow, 84 B.R. 241, 244 (Bankr.S.D.Fla.1988) (trust not a valid spendthrift trust where debtor and cousin exercised unfettered dominion and control over plan). As stated by Chief Judge Twardowski of this court in Hysick, supra, 90 B.R. at 774, “the question is not whether the ... plan contains provisions restraining alienation ... but the manner and degree in which debtor’s access is limited.” The equitable interest arises out of the debtor’s status as cestui que trust. See Broaddus v. Gresham, 181 Va. 725, 732, 26 S.E.2d 33, 35 (1943) (where the court held that a beneficiary of a trust had an equitable interest in trust property). The legal interest arises out of the debtor’s status as settlor of the trust with the right to revoke the trust at any time and recoup the trust res and dividend reinves-titure. This latter right is a right by contract and, thus, is legal in nature. See In re Watson, 13 B.R. 391, 392 (Bankr.M.D.Fla.1981) (debtor had ‘legal right’ to exercise withdrawal privileges). A beneficiary who also serves as settlor of a trust normally enjoys a great degree of control over trust funds. Thus, some courts have concluded that spendthrift provisions contained in employer-created pension plans were effective, while similar provision in self-settled plans were not. See Goff, supra, 706 F.2d at 589 and cases cited therein. However, it appears that, in Pennsylvania, a self-settled trust may be enforceable if the settlor can show that he has no further ownership in or control over the trust res. Roberts, supra, 81 B.R. at 374; Benedict v. Benedict, 261 Pa. 117, 120, 104 A. 581 (1918); and Nolan v. Nolan, 218 Pa. 135, 67 A. 52 (1907). Thus, we concur with the conclusion of Chief Judge Twardowski that we" }, { "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": "15940633", "title": "", "text": "creditors from reaching it.”). In this case, Appellee is a beneficiary of a self-settled spendthrift trust. In 1993, Appellee inherited $250,000 from her mother. To protect the inheritance from her own squandering, Appellee established a charitable trust under which she retained the right to receive a 7% income for life. Appellee purportedly was not insolvent at the time the trust was established; nor is there evidence Appellee intended to defraud her creditors. Nevertheless, Appellee is both the settlor and a beneficiary of the trust. Consequently, the spendthrift clause contained in the trust is ineffective as against Appellee’s creditors. 2. Interest Reachable by Appellee’s Creditors When a settlor creates a trust for her own benefit and inserts a spendthrift clause, the entire spendthrift clause is void as to her creditors. See Bogert § 223 (“The entire spendthrift clause, both as to voluntary and involuntary alienation, is void. The creditors can reach the settlor-beneficiary’s interest.”). In the absence of a valid spendthrift provision, a beneficiary’s interest in a trust is a property right which is liable for the beneficiary’s debts to the same extent as her legal interests. See generally Grimsley § 8-3 (‘Where the beneficiary’s equitable interest is vested in him without restraint on alienation, the interest is transferable by him and subject to claims of his creditors.”); Bogert § 193 (“If the trust is active the creditor of the beneficiary can subject the latter’s interest in the trust to the satisfaction of the debt, either in law or equity, unless a statute or a valid spendthrift provision prevents this result.”). As with any other property right, a trust beneficiary’s right to receive income for life is an interest which may be alienated or subject to attachment by her creditors. See generally Blair v. Comm’r of Internal Revenue, 300 U.S. 5, 13-14, 57 S.Ct. 330, 333-34, 81 L.Ed. 465 (1937) (holding that in absence of a valid restraint on alienation, the interest of a trust beneficiary to income for life was present property which could be assigned to others); Bradshaw v. Am. Advent Christian Home & Orphanage, 145 Fla. 270, 199" }, { "docid": "8310555", "title": "", "text": "401(a) by its literal terms grants no private right of action, this Court finds that the Debtor lacks standing to enforce his Plan’s anti-alienation provision. Since this Court does not adopt the Debtor’s expansive reading of Patterson, the Debtor’s right to retain any of the funds in his Plan is dependent upon applicable state spendthrift trust law or state exemption law. (a) If the settlor is a beneficiary of a trust created by the settlor and the settlor’s interest is subject to a provision restraining the voluntary or involuntary transfer of the settlor’s interest, the restraint is invalid against transferees or creditors of the settlor. The invalidity of the restraint on transfer does not affect the validity of the trust. 3. IS THE DEBTOR’S PLAN EXCLUDED UNDER CALIFORNIA SPENDTHRIFT TRUST LAW? Under Code § 541(c)(2), an anti-alienation provision in a spendthrift trust created under state law is enforceable to exclude the trust corpus from the bankruptcy estate. In re Kincaid, 917 F.2d 1162, 1166-69 (9th Cir.1990). California state law recognizes the general validity of spendthrift trusts. In re Neuton, 922 F.2d 1379 (9th Cir.1990); California Probate Code (“C.P.C.”) §§ 15300 et seq. (West 1991). Under California law a settlor of a spendthrift trust cannot simultaneously be a beneficiary of the same spendthrift trust. Cal.Prob.Code § 15304(a) (West 1991). The policy against these so-called “self-settled” trusts is to prevent an individual from placing his or her property beyond the reach of creditors while still enjoying the use and benefits of such property. Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021 (1949); 11 Within Summary of Cal.Law, (9th ed. 1990) Trusts § 167, p. 1020-21. A crucial factor in deciding whether the Plan meets the California spendthrift requirements is the Debtor’s degree of control over the trust. In re Reid, 139 B.R. 19, 21 (Bankr.S.D.Cal.1992). A participant with excessive control over a trust is not protected by an anti-alienation provision. See In re Shuman, 78 B.R. 254 (9th Cir. BAP 1987) (under Nevada law, no spendthrift trust where sole shareholder, president and beneficiary of plan could require full distribution" }, { "docid": "7680755", "title": "", "text": "defraud the United States means primarily to cheat the government out of property or money” and “usually” involves “trick, deceit, chicane, or overreaching.” 265 U.S. at 188, 44 S.Ct. at 512. The question before us is whether the instructions as a whole sufficiently limited the jury so that they would have acquitted the defendants if they believed the defendants were using lawful means that merely made the IRS’s job harder in making tax assessments. We agree with Caldwell’s requirement that the instructions clearly communicate that the means must be dishonest, deceitful or fraudulent in the sense of its usual meaning. So viewed, we are satisfied that the instructions given in this instance were adequate. The final instructions several times specifically directed the jury to return a not guilty verdict if the evidence did not prove beyond a reasonable doubt that defendants committed the specific conspiracy offense charged. XXII R.Supp. 4837-38; see also id. at 4840-41, 4843, 4845-46, 4847, 4851, 4855, 4858, 4862. The indictment charged conspiracy “to defraud the United States of America by impeding, impairing, obstructing and defeating the lawful government functions of the Internal Revenue Service ... in the ascertainment, computation, assessment and collection of revenue, to-wit, income taxes.” Id. at 4803. The indictment, read to the jury, charged that defendants sold foreign and domestic trusts to defraud the government by fraudulently concealing the income and assets of customers and illegally eliminating their income tax liability; that the manner and means included engaging in “sham paper transactions having no economic substance or business purpose” which concealed assets and income from the IRS, id. at 4810; that defendants advised customers on how to use the trusts to conceal assets and income; that defendants backdated trust documents; that they created the illusion that income was relinquished to the trust when in reality customers continued to control it; that they prepared and sold trust documents and advice “to create a phony paper trail” that would mislead as to the customers’ relinquishment of control, id. at 4814, and to create “a paper illusion that someone other than the trust purchaser owned and" }, { "docid": "18677385", "title": "", "text": "Kaplan, supra. There the debtor also was a physician employed by his own medical corporation of which he was a shareholder and director. The corporation formed a pension plan of which the debtor was a beneficiary, trustee and administrator of the plan. The Bankruptcy Appellate Panel held that Kaplan’s plan, even though qualified under ERISA and the Internal Revenue Code, failed to qualify as a spendthrift trust under Arizona law. The Kaplan court also concluded that Arizona courts would look to the Restatement (Second) of Trusts. While the Restatement recognizes that an enforceable spendthrift trust may be created, certain requirements must be met. As the Court in Kaplan stated: The primary consideration in determining whether a trust qualifies as a spendthrift trust is the debtor’s degree of control over his trust (i.e. the Kaplan Plan) ... 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 ... We hold that the debtor, as both the trustee and beneficiary, has complete “dominion and control” over the Kaplan Plan, thus preventing it from qualifying as a spendthrift trust under Arizona law. Therefore, the Kaplan Plan is included in the property of the estate. 97 B.R. at 577-78. In the cases at bar, debtors were employed by the corporations which formed the ERISA pension plans. They also were the directors and shareholders. As to the pension- and benefit plans, they were the trustees, beneficiaries and administrators of the plans. These facts clearly place these plans within the holding of Kaplan. See also In re Swanson, 873 F.2d 1121 (8th Cir.1989) (Teacher’s retirement fund created by Minnesota statute was not a spendthrift trust as members were able to exercise dominion and control over the monies in the fund). These plans and accounts also do not qualify as spendthrift trusts because the" }, { "docid": "18162666", "title": "", "text": "were to be used by both of them as beneficiaries. Both exercised complete control over the trust assets. The debtor, however, could only revoke the trust with his wife’s consent. The court concluded that the self-settled trust was not a valid spendthrift trust under Missouri law, and added that “[t]he mere fact that Debtor cannot solely revoke the Trust is irrelevant given the potential for abuse.” Id. at 402. Like the Markmueller and Edelmann cases, this case involves a husband and wife who contributed property to Trusts, who were beneficiaries of those Trusts, and who exercised a certain degree of control over the distribution of Trust assets. However, those cases are distinguishable insofar as the debtors exercised control over the assets, including their right to revoke the respective trusts, pursuant to provisions in the trust documents themselves. The Kathleen Trust does not provide the Debtor with the right to revoke it, with or without Kathleen’s consent. Additionally, Markmueller and Edelmann were decided prior to the MUTC amendments that validated spendthrift trusts and abrogated the line of cases holding that the exercise of dominion and control was sufficient grounds to bring the trust assets into the estate. The subcommittee of the Probate Section of the Missouri Bar responsible for the drafting of § 456.5-505 addressed these contrary cases, including Markmueller, that were decided under the predecessor section this way: In each of these cases the decision was based on grounds other than the inapplicability of Section 456.080.3, and statements in those cases as to its lack of protection seem to be dicta. ... To the extent that those cases hold that Section 456.080.3 does not protect a settlor’s interest in a trust that fits within the statutory protection, those cases are incorrect and ignore the plain language of the statute.... The incorporation and reenactment of a spendthrift clause in Section 456.5-503 is intended to overrule any holding that would render that portion of the statute meaningless. 4C Mo. Prac., Trust Code & Law Manual § 456.5-505 (2012). The Trustee is essentially asking the Court to create a non-statutory right in favor" }, { "docid": "15940628", "title": "", "text": "An estate in bankruptcy consists of all interests in property possessed by the debtor at the time of her bankruptcy filing. 11 U.S.C. § 541(a)(1) (1994). Where there is a restriction on transfer of the debtor’s interests under applicable non-bankruptcy law, however, such restriction remains effective even in bankruptcy. 11 U.S.C. § 541(c)(2). As a result, spendthrift and support trusts are excluded from a debt- or’s bankruptcy estate to the extent they are protected from creditors under applicable state law. The state law applicable in this case is the law of the State of Florida. We will examine in turn whether the ICRUA qualifies as either a spendthrift trust or a support trust under Florida law. A. The ICRUA as a Spendthrift Trust In Florida, trusts containing valid spendthrift provisions are protected from the reach of creditors, so long as the beneficiaries cannot exercise dominion over the trust assets. See generally Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603, 605 (Fla.1947) (en banc) (recognizing the validity of spendthrift trusts); Croom v. Ocala Plumbing & Elec. Co., 62 Fla. 460, 57 So. 243, 244-45 (Fla.1911) (holding creditors could reach trust property, despite presence of spendthrift clause, where the beneficiaries possessed absolute control over the property). Where a trust is self-fund ed by a beneficiary, however, there is an issue as to whether the trust’s spendthrift provision is valid as against creditors of the settlor-beneficiary. We conclude it is not, and the beneficiary’s interest is subject to alienation by her creditors. 1. Validity of the ICRUA’s Spendthrift Provision as Against Appellee’s Creditors Spendthrift trusts are defined under Florida law as “those trusts that are created with a view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self-protection.” Croom, 57 So. at 244 (emphasis added); see also Waterbury, 32 So.2d at 605 (“A spendthrift trust is one that is created with the view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self" }, { "docid": "18162665", "title": "", "text": "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 were to be used by both of them as beneficiaries. Both exercised complete control over the trust assets. The debtor, however, could only revoke the trust with his wife’s consent. The court concluded that the self-settled trust was not a valid spendthrift trust under Missouri law, and added that “[t]he mere fact that Debtor cannot solely revoke the Trust is irrelevant given the potential for abuse.” Id. at 402. Like the Markmueller and Edelmann cases, this case involves a husband and wife who contributed property to Trusts, who were beneficiaries of those Trusts, and who exercised a certain degree of control over the distribution of Trust assets. However, those cases are distinguishable insofar as the debtors exercised control over the assets, including their right to revoke the respective trusts, pursuant to provisions in the trust documents themselves. The Kathleen Trust does not provide the Debtor with the right to revoke it, with or without Kathleen’s consent. Additionally, Markmueller and Edelmann were decided prior to the MUTC amendments that validated spendthrift trusts and abrogated the line" }, { "docid": "21143641", "title": "", "text": "DENNIS, Circuit Judge: Our main concern in this bankruptcy appeal is whether the burdens and ele ments of proof were correctly applied in a bankruptcy trustee’s action to trace and recover assets that a debtor “self-settled” into a spendthrift trust of which he is the beneficiary. The bankruptcy and district courts held that, although the debtor and his business associates used the trust in a scheme to defraud his creditors, the trust could not be declared a sham because under Texas law the doctrine of sham or illusory trust applies only in marital litigation. Instead, those courts held that the bankruptcy trustee, in order to pursue the remedy of tracing assets from the debtor into the hands of the spendthrift trust trustee and recovering those assets for the bankruptcy estate, had the burden of proving that those assets were identical with the debtor’s former property, that they were products of such property, or that they had been commingled with other assets of the spendthrift trust. Those courts further concluded that the bankruptcy trustee carried his burden with respect to certain assets of the debtor but failed with respect to others. Accordingly, they held that only the specific assets in the hands of the spendthrift trust trustee that the bankruptcy trustee successfully traced and proved to be identical with former property of the debtor would be included in the bankruptcy estate. Finally, both courts agreed that Bradley should not be granted a discharge from bankruptcy because of his concealment of the self-settled assets. We affirm the judgments of the bankruptcy and district courts for the reasons hereinafter assigned. I. BACKGROUND Gary L. Bradley was a major real estate developer in Austin, Texas who maintained a business partnership with James Gres-sett for a number of years. Bradley and Gressett had a private, unrecorded agreement with respect to assets and legal entities they owned or controlled. Bradley’s share consisted of 80% of the real estate holdings and 20% of the non-real estate investments; Gressett’s share consisted of 20% of the real estate holdings and 80% of the non-real estate investments. Bradley consistently avoided" }, { "docid": "22126162", "title": "", "text": "trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In short, a defendant shoulders a “heavy burden” in challenging the sufficiency of evidence supporting a conviction. United States v. Matthews, 20 F.3d 538, 548 (2d Cir.1994). 2. Elements The elements of mail or wire fraud are (i) a scheme to defraud (ii) to get money or property, (iii) furthered by the use of interstate mail or wires. See United States v. Zagari, 111 F.3d 307, 327 (2d Cir.1997). The latter two elements were not contested by Autuori. Because the only distinction between mail fraud and wire fraud appears in the third element, which is not at issue here, our analysis applies to all sixteen counts. See United States v. Slevin, 106 F.3d 1086, 1088 (2d Cir.1996). As to the first element, the government was required to prove (i) the existence of a scheme to defraud, see United States v. D'Amato, 39 F.3d 1249, 1256-57 (2d Cir.1994), (ii) the requisite scienter (or fraudulent intent) on the part of the defendant, see id. at 1257, and (iii) the materiality of the misrepresentations, see Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). 3. Scheme to Defraud The mail and wire fraud statutes do not define “scheme to defraud,” but it has been described as a plan to deprive a person “of something of value by trick, deceit, chicane or overreaching.” McNally v. United States, 483 U.S. 350, 358, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924)) (internal quotation marks omitted). It is characterized by a departure from community standards of “fair play and candid dealings.” United States v. Ragosta, 970 F.2d 1085, 1090 (2d Cir.1992) (quoting United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir.1987)) (internal quotation marks omitted). We agree with the district court that there was sufficient evidence to support the jury’s conclusion that there was a" }, { "docid": "6932899", "title": "", "text": "to the merits of appellant’s second argument. As the Third Circuit aptly observed: [t]he term ‘scheme to defraud,’ ... is not capable of precise definition. Fraud instead is measured in a particular case by determining whether the scheme demonstrated a departure from fundamental honesty, moral uprightness, or fair play and candid dealings in the general life of the community. United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir.1987) (dealing with predecessor statute § 1344(a)(1)); cf. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 105, at 727 (5th ed. 1984) (describing the term “fraud” as “so vague that it requires definition in nearly every case”). In McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme Court examined the term “to defraud” in the context of 18 U.S.C. § 1341, the mail fraud statute, and stated that the term “commonly refer[s] ‘to wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signifies] the deprivation of something of value by trick, deceit, chicane or overreaching.’ ” Id. at 352, 358, 107 S.Ct. at 2877, 2880. Indeed, the trial court in the instant case used this language to define the term “to defraud” in its charge to the jury. Furthermore, we note that in Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968 (1924), while examining the breadth of the predecessor to 18 U.S.C. § 371, the Supreme Court held that the term “conspire to defraud the [government]” meant “primarily to cheat the Government out of property or money.” Id. at 185, 188, 44 S.Ct. at 511, 512 (emphasis added). In Schwartz, the Third Circuit affirmed the defendant’s bank fraud conviction for check kiting, concluding that his conduct violated subsection (1) of the predecessor statute § 1344(a). The court was apparently persuaded that, pursuant to the trial court’s instructions, the jury must have found that the defendant knew that the checks he was depositing were worthless. Thus, there was no question that, when he engaged in the various withdrawals, he knew the" }, { "docid": "10520083", "title": "", "text": "In re Spenlinhauer, 182 B.R. 361 (Bankr.D.Me.1995), aff'd, 195 B.R. 543 (D.Me.1996), aff'd, 101 F.3d 106 (1st Cir.1996), “[s]ection 541(c)(2) and its histori cal antecedents have operated to save unto the debtor his or her interest in a valid ‘spendthrift trust.’ ” 182 B.R. at 363 (citations omitted). In re Tosi, 383 B.R. at 10. See also In re Reuter, 499 B.R. at 670. This Court in Tosi added: “[A] spendthrift trust' is ineffective against creditors if the settlor creates a trust for the settlor’s own benefit and retains the power to amend, revoke or invade the principal of the trust.” Based upon that statement, the Debtor and Henault-Tosi assert that for a spendthrift provision to be unenforceable under bankruptcy law the settlor must retain indicia of control. This Court rejects that assertion. While bankruptcy courts frequently encounter instances where settlors have reserved such powers to themselves, see, e.g., In re Tongas, 338 B.R. 164 (Bankr.D.Mass.2006); In re Beatrice, 277 B.R. 439 (Bankr.D.Mass.2002), aff'd, 296 B.R. 576 (1st Cir. BAP 2003); In re Cowles, 143 B.R. 5 (Bankr.D.Mass.1992), “dominion over the trust assets is irrelevant to the analysis” of whether a self-settled trust with a spendthrift provision is property of the estate. In re Brown, 303 F.3d [1261] at 1267 n. 9 [(11th Cir.2002)]. In re Tosi, 383 B.R. at 11. In Brown, the debtor was a beneficiary of a self-settled trust but could not exercise dominion over trust assets. The Eleventh Circuit stated that “[t]he issue of self-settlement is separate from the issue of control, and either can serve as an independent ground for invalidating a spendthrift provision.” Id. (citing In re Spenlinhauer, 182 B.R. 361 (Bankr.D.Me.), aff'd 101 F.3d 106 (1st Cir.1996)(declining to address beneficiaries’ control over trust where the trust was self-settled and, therefore, the spendthrift provision was ineffective on that basis alone). The Trustee argues that he has standing under 11 U.S.C. § 541(a) to bring a reverse veil piercing claim against the Buttonwood Trusts, adding that he also has standing under 11 U.S.C. § 544, although he did not reference that section of the Bankruptcy" }, { "docid": "22798477", "title": "", "text": "the information to a competitor; it is sufficient that the Journal has been deprived of its right to exclusive use of the information, for exclusivity is an important as pect of confidential business information and most private property for that matter. We cannot accept petitioners’ further argument that Winans’ conduct in revealing prepublication information was no more than a violation of workplace rules and did not amount to fraudulent activity that is proscribed by the mail fraud statute. Sections 1341 and 1343 reach any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises. As we observed last Term in McNally, the words “to defraud” in the mail fraud statute have the “common understanding” of “ ‘wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’” 483 U. S., at 358 (quoting Hammerschmidt v. United States, 265 U. S. 182, 188 (1924)). The concept of “fraud” includes the act of embezzlement, which is “ ‘the fraudulent appropriation to one’s own use of the money or goods entrusted to one’s care by another.’” Grin v. Shine, 187 U. S. 181, 189 (1902). The District Court found that Winans’ undertaking at the Journal was not to reveal prepublication information about his column, a promise that became a sham when in violation of his duty he passed along to his co-conspirators confidential information belonging to the Journal, pursuant to an ongoing scheme to share profits from trading in anticipation of the “Heard” column’s impact on the stock market. In Snepp v. United States, 444 U. S. 507, 515, n. 11 (1980) (per curiam), although a decision grounded in the provisions of a written trust agreement prohibiting the unapproved use of confidential Government information, we noted the similar prohibitions of the common law, that “even in the absence of a written contract, an employee has a fiduciary obligation to protect confidential information obtained during the course of his employment.” As the New York courts have recognized: “It is well established," }, { "docid": "8310556", "title": "", "text": "trusts. In re Neuton, 922 F.2d 1379 (9th Cir.1990); California Probate Code (“C.P.C.”) §§ 15300 et seq. (West 1991). Under California law a settlor of a spendthrift trust cannot simultaneously be a beneficiary of the same spendthrift trust. Cal.Prob.Code § 15304(a) (West 1991). The policy against these so-called “self-settled” trusts is to prevent an individual from placing his or her property beyond the reach of creditors while still enjoying the use and benefits of such property. Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021 (1949); 11 Within Summary of Cal.Law, (9th ed. 1990) Trusts § 167, p. 1020-21. A crucial factor in deciding whether the Plan meets the California spendthrift requirements is the Debtor’s degree of control over the trust. In re Reid, 139 B.R. 19, 21 (Bankr.S.D.Cal.1992). A participant with excessive control over a trust is not protected by an anti-alienation provision. See In re Shuman, 78 B.R. 254 (9th Cir. BAP 1987) (under Nevada law, no spendthrift trust where sole shareholder, president and beneficiary of plan could require full distribution upon termination of employment). In re Reid, 139 B.R. at 21 (no spendthrift trust where former employee had power to demand lump sum distribution); Compare In re Kincaid, 917 F.2d 1162 (9th Cir.1990) (debtor’s ability to obtain funds from the plan pursuant to certain specified loan and hardship conditions did not destroy its spendthrift nature because such access was at the discretion of the administrator, not the debtor). Although under state law a corporation is considered a separate legal entity, courts which have dealt with a one person corporation have disregarded the legal fiction that the incorporated individual as settlor is an entity separate from the individual beneficiary. In re Reed, 951 F.2d 1046 (9th Cir.1991); In re Kaplan, 97 B.R. 572 (9th Cir. BAP 1989); In re Lichstrahl, 750 F.2d • 1488, 1490 (11th Cir.1985); In re Goff, 706 F.2d 574 (5th Cir.1983). Thus, control exercised over the Debtor’s plan by a corporation must be restricted more if it is to be effective as a spendthrift trust against the creditors of a beneficiary who" } ]